Military and Police

Judicial Activism: Disrespecting the Constitution and the Rule of Law

I don’t think we can repeat the following Ronald Reagan quote often enough. Especially these days in the face of what’s become pervasive leftist (including establishment Republican judges) judicial activism:

“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it—certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.”

Writing for Heritage.org, Elizabeth Slattery offers a strategy for determining if a judge is engaging in judicial activism. “Since the late 1930s, the courts have gradually abandoned their proper and essential role under the Constitution to police the structural limits on government and neutrally interpret the laws and constitutional provisions without personal bias. Many judges refuse to interpret the Constitution and statutes according to their original public meaning (or perhaps lack the understanding of how to do so). Instead, they seek to impose their personal preferences. But a judge who looks beyond the text of the Constitution ‘looks inside himself and nowhere else.’”

As a person who spent a career enforcing the laws of this nation and of my adopted city and state, Seattle, Washington, I cringe every time I hear about another leftist judge suing either President Trump, some other Republican, or a conservative effort. Washington state’s Attorney General Bob Ferguson has made taking the president to court a proverbial cottage industry.

Whenever judges at any level replace their responsibility to impartially interpret the law, with arbitrary and capricious rulings, the proverbial reverberations are felt throughout the criminal justice system from other judges to rank and file law enforcement at the federal, state, and local levels. It weakens the foundation upon which all law stands. How long before it crumbles?

In many states a court’s activism also involves implementing laws and policies, which are blatantly unconstitutional but which leftists will risk because they know it’ll be years—if ever—before a high court will strike down the law. For that duration, they enjoy their version of success, which means oppressive laws imposed against law-abiding people.

I’m truly baffled that we’re even discussing whether it’s right to follow constitutional laws. No, baffled doesn’t quite explain my level of confusion. Maybe, befuddled, flummoxed, or flabbergasted would work better. But even these words lack the gravitas needed to convey fully this distinctive angst. So, instead, let’s conscript the archaic yet much more suitable, jargogled—yes, that’s it! I’m jargogled that the rule of law means so little to the left. Oh, unless it pertains to Roe v. Wade. Only then is it written in…well, you know.

My point here is as much to convey my level of bewilderment over the left’s disregard for laws they don’t like and for the rule of law when they disagree with it. I think my angst is warranted because whenever I find myself talking with a lefty who cheers on the current glut of judicial activism, I wonder how I can intelligently argue an issue that shouldn’t exist in a civilized democratic-republic.

How can anyone argue the law, or the democratic process to create or rescind law, isn’t important? That it’s okay to simply ignore it?

I mean, we’re now arguing with the neo-left about the correctness of following duly created laws for which there is a legal remedy if society wishes to change them. Even at the constitutional level, there are mechanisms for change.

But why get mired in rescinding or altering laws when all you have to do is abridge, infringe, or ignore them all together?

Take one recent example in North Carolina. In November 2018, by state referendum, North Carolinians passed four state constitutional amendments, two struck down by a court. One capped the state income tax rate, and the other would require voter I.D.

According to the Raleigh News and Observer, “A judge has just thrown out two amendments to the North Carolina Constitution that voters approved in November.” The judge single-handedly decided that the state was too “gerrymandered” for the General Assembly to legally represent the people of the state.

His Honor decreed, “An illegally constituted General Assembly does not represent the people of North Carolina and is therefore not empowered to pass legislation that would amend the state’s constitution.”

The ACLU, responsible for the lawsuit the judge ruled on, was delighted with the ruling. The liberal advocacy organization explained the previous General Assembly majority only gained power because of “the use of racially discriminatory maps.” Even if that is true, there are other mechanisms for recourse than a judge’s decree that nullifies citizens’ rights.

According to LegalInsurrection.com, the referendums enjoyed “a comfortable majority of voters across” the state. They point out there were two other referendums that weren’t a part of the decision. How could the judge declare two referendums void and two valid that came out of the same “illegally constituted General Assembly”? Arbitrary? Capricious?

Judicial activism, of course, pre-dates President Trump, but the numbers tell us the problem has gotten much worse. Propublica.org reports, “The normal ‘win rate’ for the government in such cases is about 70 percent… But as of mid-January, a database maintained by the Institute for Policy Integrity at the New York University School of Law shows Trump’s win rate at about 6 percent.” Incidentally, 6 percent mirrors the president’s positive media coverage.

Propublica.org adds, “Federal judges have ruled against the Trump administration at least 63 times over the past two years.” They cite rules set up to prevent a president from arbitrary and capricious rule. Really? Well then where the hell were these judges under President Obama’s rule? When he talked about circumventing Congress with his “I’ve got a pen, and I’ve got a phone” tactics to conduct the people’s business. And who knows what will come out when we learn more about the possible weaponization of federal law enforcement and intelligence agencies? I know where the hell those judges were. Most of them were on the bench.

Arbitrary and capricious? I guess it depends on who’s doing the judging.

The opinions expressed here by contributors are their own and are not the view of OpsLens which seeks to provide a platform for experience-driven commentary on today's trending headlines in the U.S. and around the world. Have a different opinion or something more to add on this topic? Contact us for guidelines on submitting your own experience-driven commentary.
Steve Pomper

Steve Pomper is an OpsLens contributor, a retired Seattle police officer, and the author of four non-fiction books, including De-Policing America: A Street Cop’s View of the Anti-Police State. You can read a review of this new book in Front Page Magazine and listen to an interview with Steve on the Joe Pags Show. Steve was a field-training officer, on the East Precinct Community Police Team, and served his entire career on the streets. He has a BA in English Language and Literature. He enjoys spending time with his kids and grand-kids. He loves to ride his Harley, hike, and cycle with his wife, Jody, a retired firefighter. You can find out more about Steve and send him comments and questions at www.stevepomper.com.

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