Perhaps the most controversial recent development in judicial decision-making has been a blurring of legislative and judicial functions. This development began in the United States, where it was partly attributable to a Bill of Rights that lays down broad and imprecise principles that are capable of many interpretations.
These United States’ decisions have led to a tendency of some judges to regard themselves as above the law, in the sense that where they do not approve of laws they attempt to change them without legislative authority. Perhaps the most notable example in Australia was the Mabo decision, in which a politically-motivated High Court disregarded prior authority and, without the matter even rising directly for decision before it and without proper argument, established a novel doctrine of Aboriginal land rights.
The basic argument against judicial activism is that activist judges misuse their position. They are not elected, and they have no mandate to alter the law in accordance with their own views and prejudices. It is significant that judicial activists are almost invariably left-wing politically.1
An interesting account of judicial activism in America is The Supremacists, by Phyllis Schlafly.2 Mrs. Schlafly is a lawyer and a nationally syndicated columnist whose writings are influential. Her attitude (which in the United States represents the view of the majority of the population) is epitomised by the following passage.3
"The new ruling class of judicial supremacists has effectively changed the definition of ‘the supreme law of the land’ from ‘this Constitution, and the Laws of the United States which shall be made in Pursuance thereof’ to whatever a federal judge decides this week. The supremacists have replaced our three equal branches of the federal government with the Imperial Judiciary.
The judges have convinced themselves that they are infallible and should have the final say over our nation's controversial political and social issues. The judges use their assumed powers to enforce their liberal agenda on us, and they preempt criticism by repeatedly proclaiming the false court-invented notions that their rulings are the law of the land and that the Constitution is whatever the Supreme Court says it is. They are locking in what Thomas Jefferson called ‘the despotism of an oligarchy’ of judges who have become ‘the ultimate arbiters of all constitutional questions.’
Article IV, Section 4 of the Constitution guarantees ‘to every State in this union a Republican Form of Government’. As long as we allow judges to legislate public policy, we do not have republican self-government. The American people and their elected representatives allowed this to happen over the last fifty years, exactly as Thomas Jefferson warned:
‘The germ of dissolution of our federal government is in the constitution of the federal judiciary; . . . working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped . . .’
The judicial supremacists have no regard for the processes of self-government. According to Robert Bork, the judges disdain the American people as ‘motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality, and the like,’ and the judges see their mission as remaking our culture in their own liberal image."
Mrs. Schlafly points to a variety of "rights" that have their foundation in judicial decisions, including the "right" to abortion, the "right" to same sex marriage licences, the "right" to show and publish pornography, even with taxpayers’ money, and the "right" of illegal aliens to receive taxpayer-paid benefits.
The prevalence of judicial legislation has even caused many members of the judiciary to comment on it themselves, including Justice Antonin Scalia, of the Supreme Court. Thus,4
"Judges are not trained to consider the trouble their rulings may cause. When judges re-write laws regarding social policy, they are generally clueless about the potential consequences. Judges lack the necessary information to make political and social policy decisions, they do not have the political processes to ensure that diverse interests are represented, and they do not hold hearings to assess the damage they might cause.
Americans believe that revolutionaries usually come dressed in military garb, but Judge Bork details how America has suffered a coup d’etat by men and women in black robes who have changed the rule of law to the rule of judges. Here is how Justice Antonin Scalia describes what happened: ‘What secret knowledge, one must wonder, is breathed into lawyers when they become justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for two hundred years, is in fact unconstitutional? … Day by day, case by case, [the Supreme Court] is busy designing a Constitution for a country I do not recognise."
The Pledge of Allegiance
Many examples might be given of the peculiarities of judicial activism, but the suppression by the courts of the Pledge of Allegiance is especially interesting.
The First Amendment to the United States Constitution states inter alia, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ."
The long-established Pledge of Allegiance contains the words "under God". Children are not compelled to join in its recitation if it is contrary to their religion to do so. In 2002 the Ninth Circuit U.S. Court of Appeals handed down a two to one ruling in Newdow v. U.S. Congress barring the Pledge of Allegiance from the public schools in view of its words "under God". The dissenting judge expressed the views of most Americans in stating, "Such phrases as ‘In God We Trust’ and ‘Under God’ have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life of our polity. Those expressions have not caused any real harm of that sort over the years since 1791, and are not likely to do so in the future."
This curious decision was a consequence of a long course of activity by the American Civil Liberties Union (the A.C.L.U), which has attempted to prevent the acknowledgement of God by public officials or persons using public property (despite the fact that in the Declaration of Independence, for example, Thomas Jefferson described Americans’ rights as God-given).
Thus in 2003 a liberal judge appointed by President Carter, Judge Myron H. Thompson, ordered a monument to be removed from the State Judicial Building because it displayed the Ten Commandments. In other cases on the same matter the A.C.L.U. has often had less success. For example, in 2003 the Fifth Circuit U.S. Court of Appeals unanimously rejected an attempt to remove the Ten Commandments from the Texas State Capitol. Contrary to Judge Thompson in Alabama, the Fifth Circuit judges (in Van Orden v. Perry) declared the Ten Commandments "a sacred text to many, for it is . . . a powerful teacher of ethics, of wise counsel urging a regimen of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world . . . There is no constitutional right to be free of government endorsement of its own laws."
The Redefinition of "Marriage"
The term "marriage" has been traditionally used to denote a union of a man and a woman. However in 2003, in Goodridge v. Department of Public Health, the Massachusetts Supreme Court held by a majority of four to three that "marriages" between two persons of the same sex must be permitted. The majority of that court has held: "We construe civil marriage to mean the voluntary union of two persons, to the exclusion of all others." However the dissenting judges commented, "What is at stake in this case is not the unequal treatment of individuals or whether individual rights have been impermissibly burdened, but the power of the Legislature to effectuate social change without interference from the courts . . . The power to regulate marriage lies with the Legislature, not with the judiciary."
The Massachusetts Equal Rights Amendment provides, "Equality under the law shall not be denied or abridged because of sex, race, colour, creed or national origin." Such provisions are often relied upon by activists. But their effect is commonly over-stated. The maintenance of two-sex marriages does not deny equality to homosexuals. Homosexuals, as well as normal people, have the right to marry those of the opposite sex. If they choose not to do so, their choice does not create inequality.
The Debate About Pornography
Pornography is a subject that is particularly apt to give rise to dissension and opposing views. In America it has given rise to much controversy, and particularly to conflict between liberals and the traditionalist majority.
The freedom of speech provisions of the First Amendment were initially given effect by the Supreme Court in such a way as not to protect obscenity. So in 1957 in Roth v. United States the Supreme Court stated: "We hold that obscenity is not within the constitutionally protected speech or press." However between 1966 and 1970 the liberal and activist Warren Supreme Court handed down a series of thirty-four decisions, the total effect of which was that virtually no publication could be banned on the ground of obscenity.
This position was contrary to the wishes of the majority of Americans, who are generally morally conservative. A consequence has been the inability of the American State legislatures to regulate or proscribe hard-core pornography. Again, judicial activism has coerced a field to the exclusion of legislative action representing popular opinion.
Indeed, A.C.L.U. action has extended to attacking the Boy Scouts. The Boy Scouts have in many cases declined to hire homosexuals to over-see boys’ activities. This appears to be a very reasonable precaution. Clearly to expose boys to homosexual leaders would in many cases give rise to inappropriate sexual activity, through the homosexuals’ taking advantage of the young. But remarkably the A.C.L.U. has brought various proceedings in order to have government assistance to the Boy Scouts terminated on the basis of unlawful discrimination.
Activist Judges in Australia
Unfortunately some Australian judges — almost invariably left-wing — wish to emulate American activism. As noted here, the Mabo decision creating novel land rights was an extreme exercise in judicial activism, and was dressed up dishonestly in order to obscure this fact. More recently Justice Michael Kirby — another left-wing judge — has emerged as an activist, on homosexual causes especially. And a Victorian grouping in the Federal Court — including the leftish Chief Justice Black and Justices Gray, North, Merkel and Finkelstein — has caused concern in cases involving Aboriginals, illegal immigrants and other matters of political sensitivity. In Australia, as elsewhere, judges must accept that their function is to apply the law faithfully and to implement the statutes of the legislature, not to distort the law in the light of their personal views and prejudices.
1. Australia's most publicised judicial activist is Justice Michael Kirby, appointed by the government of Mr. Paul Keating. Justice Kirby is also Australia's most self-publicising homosexual lobbyist.
2. Dallas, Spence Publishing Company, 2004.
3. Ibid., pages 144-45.
4. Ibid., pages 15-16.
National Observer No. 63 - Summer 2005