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Originalism vs. Activism

Recently, Judge Amy Cone Barrett’s prepared remarks for her Senate Judiciary Committee hearing included a defining statement. She told the senators and Americans watching at home:

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People.”

This is similar to something that Justice Neil Grouch said in his own confirmation hearing a few years ago.  He said it was Congress’s job to make the law, while it was the job of the courts only to make sure that individual cases were fairly decided. Judges “would make pretty rotten legislators,” he added.  He said this in response to a question about the separation of powers, and he strongly suggested that the people who wrote our Constitution did’t want judges to make laws.

If this is true, why do so many citizens go to the Court whenever they disagree with “policy decisions and value judgments.”  What happened to the separation of powers?  Well it is much like the reaction of a child to learning something they don’t like from Mom, they go to Dad; or Vice-a-Verse.  Instead of trying to work with the law, they try to get someone else to render a different opinion.  Unfortunately, too many in the legal system play into this same trap by forgetting their allegiance lies in the law itself, not in what they want the law to be.

An Example

In a September 14 ruling, Pittsburgh-based Federal District Court Judge William S. Stickman IV ruled that some of the state’s lockdown restrictions on gatherings violated the First Amendment’s right of assembly.  He also ruled that the state’s stay-at-home and business closure restrictions violate the due process clause of the 14th Amendment, while business closures also violate the 14th Amendment’s equal protection clause.

Democratic Governor Tom Wolf and his administration testified that restrictions of this kind are permissible in temporary emergencies like pandemics, an argument that survived scrutiny two weeks earlier under another U.S. District Judge, R. Barclay Surrick. In his opinion, Surrick writes, “We are skeptical of claims seeking to challenge emergency government action taken to combat a once-in-a-lifetime global health crisis.”

Judge Stickman, in an apparent rebuttal to Surrick’s decision, acknowledged the circumstances of the lockdown orders, but observed nonetheless that “even in an emergency, the authority of government is not unfettered.” In his concluding paragraph, he powerfully defended constitutional rights:

The liberties protected by the Constitution are not fair-weather freedoms—in place when times are good but able to be cast aside in times of trouble…. [T]he solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain lines that may not be crossed, even in an emergency.”

Surrick claimed that the restrictions were temporary and therefore justified. Stickman disagreed.  Two different US District Judges within two weeks, issue completely different Judgments on the same facts, in the same state, with the same parties.  Whichever side of the law you fall on you lose in this situation.

It may have been best said by Clarence Thomas.  On OCTOBER 15, 1991, the U.S. Senate confirmed Clarence Thomas as a Justice on the Supreme Court.  When questioned during the hearings by Senator Thurmond regarding judicial activism, Clarence Thomas replied:

“The role of a judge is a limited one. It is to … interpret the Constitution, where called upon, but AT NO POINT to impose his or her will or … opinion in that process.”

When a Court tries to dictate policy instead of provide clear and concise judgments of the law, conflict is created and the Court becomes a tool of politics, not the ultimate arbiter of the law.

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