Every time I turn on the TV, I see another Republican presidential candidate declaring that federal courts are engaging in “judicial tyranny.” Or if one listens to Rick Santorum, the courts are dominated by “liberal-activist” judges bent on the destruction of religious liberty, democratic values and the other two branches of government.
Not only is this description of the federal courts wrong, it depicts the judicial branch as a threat to liberty, when in reality, it is a proponent of liberty.
There is a serious flaw in the premise of presidential candidates like Rick Santorum and Newt Gingrich that the federal courts have only recently become “activist” in nature. If any reasonable person researched this premise, he or she would realize it’s demonstrably false.
The federal courts have always gone through a cycle of being activist and then becoming more deferential to the other governmental branches. This process has been going on since the establishment of the federal courts in this nation and continues as we speak.
The first Supreme Court cases demonstrate the struggle between activist courts and deferential courts. In Marbury v. Madison, the Supreme Court asserted its judicial supremacy in interpreting federal law and the U.S. Constitution by striking down Section 13 of the 1789 Judiciary Act as unconstitutional. This was the first big act of judicial activism.
During the early 1900s, the Supreme Court displayed many battles of judicial activism versus judicial deference. In Lochner v. New York, the Supreme Court engaged in conservative judicial activism by striking down a New York baker law that regulated employee labor hours to no more than 60 hours per week. The court ruled this law was a violation of the 14th Amendment because the state law violated the baker’s right of contract.
The conservative-activist court struck down a federal child labor law 13 years later in Hammer v. Dagenhart. The Supreme Court ruled that the Federal Child Labor Act violated the 10th Amendment by restricting North Carolina’s police powers over local trade and manufacturing.
After many decisions like this by the Supreme Court extending into the 1930s, President Franklin Roosevelt tried to pack the court in 1937 with six more justices with an ideology more in line with his own. This effort failed because of public opinion and Justice Roberts switching his voting bloc from the four more conservative justices to the four liberal justices.
In NLRB v. Jones & Laughlin Steel Corp., the Court upheld the National Labor Relations Act enacted by Congress. This case illustrated that the Supreme Court had switched from a conservative-activist court to a liberal-deferential court. Today, the court is split between both liberal and conservative activist factions, with both blocs vying for Justice Anthony Kennedy’s swing vote in close cases.
This very history demonstrates that former history professor and presidential candidate Newt Gingrich is wrong on his assumption that judicial activism is a liberal creation of the last two decades. It is instead a creation, both liberal and conservative, that has existed since the American court system itself was created in 1789.
Gingrich is also incorrect in his belief that the federal judiciary has become too powerful in relation to the other two branches of government, calling judicial supremacy a “dangerous despotism.” In Federalist No. 78, Alexander Hamilton wrote, “The judiciary, on the contrary, has no influence over either the sword or the purse.”
Hamilton knew in the 1700s that future federal courts would be the weakest of the three branches of government. Because of this, he warned in Federalist No. 78 that the courts should only exercise judgment and not will.
This is why the Supreme Court uses heavy logic and case law to justify its decisions. If it didn’t, the other branches could just declare the court illegitimate and defund it like Thomas Jefferson did for a court term when he served as president.
The court today is not stronger than the other three branches of government. If anything, one could argue that it is weaker.
First, the Supreme Court must have the other two branches enforce its judicial decisions. The Court has no enforcement power of its own.
Second, the Court has moved away from a strict jurisprudence that requires an official declaration of war from Congress and now allows the president to request an authorization for use of military force from Congress instead.
This has increased the power of the president, even though Gingrich makes it seem like the judiciary has become a tyrannical institution.
The federal courts have always been diverse in their ideology and are strong independent institution that tries to protect individual’s liberties, although at times they fail.
The GOP presidential candidates should remember this instead of threatening to arrest federal court judges with federal marshals.
