How can you tell if the newest Supreme Court Associate Justice Ketanji Brown Jackson is an “activist” judge? She admits it. Worse, she appears to think it is her job, if not her duty, to engage in (left-wing) judicial activism.
In an interview with CBS News, Jackson explained what she hopes to accomplish in her many dissents. “I just feel that I have a wonderful opportunity to tell people in my opinions how I feel about the issues,” she said, “and that’s what I try to do.” She added, “And I’m not afraid to use my voice.” This sounds like a podcaster rather than a judge.
You might be forgiven for thinking judges are supposed to interpret the law as intended by the legislature and apply the law to resolve disputes before the court.
Chief Justice John Roberts, for example, compares the role of a justice to that of an umpire whose job is to call balls and strikes. “Judges,” Roberts said, “are like umpires. They don’t make the rules, they apply them.” As to judges deciding cases based on policy or on “how (they) feel about the issues,” on their weighing in on policy, Roberts said, “I don’t think you want judges deciding cases based on what is good policy … there are legal questions here.”
Justice Amy Coney Barrett, in her majority decision that reined in the power of district courts to impose nationwide injunctions, scolded Jackson for departing from this conventional view of the role of a judge. Barrett wrote, “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”
Jackson’s judicial philosophy mirrors that of then-Supreme Court Associate Justice Thurgood Marshall who described his judicial philosophy as follows, “You have to do what’s right and let the law catch up.”
About the Founding Fathers, Marshall in 1987 on the nation’s bicentennial wrote: “The government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago.” Marshall’s history is true. But it is up to Congress, not judges, to correct the defects.
Marshall considered the Constitution a “living breathing document” whose words and intent can — and should — be altered by (left-wing) judges to suit contemporary sentiment. As to the Constitution, Marshall wrote: “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound.”
Therefore, according to Marshall, a judge must “do what’s right and let the law catch up”? Does this judicial doctrine apply when the judge is a “conservative” or a “strict constructionist” or an “originalist,” defined as one who believes in interpreting the law based on the words of the statute or of the Constitution?
Justice Antonin Scalia called himself “an originalist.”
Scalia, in 2007, said: “Over the past 40 or 50 years, the philosophy of a living, or evolving, Constitution has become popular. It is enormously seductive. You think everything you care about passionately is there in the Constitution. Everything comes out the way you want it to. … (The Constitution) is not an empty bottle to be filled up by each generation.”
Associate Justice Elena Kagan has spoken of the importance of “public sentiment.” She said, “I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.” Kagan added, “Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan.”
In other words, the Supreme Court, according to Kagan, should to at least some degree decide cases based on popular opinion rather than on the law as written or as intended by the legislature. Why bother with the Supreme Court? Let’s just take a poll.
Larry Elder is a bestselling author and nationally syndicated radio talk-show host. To find out more about Larry Elder, or become an “Elderado,” visit www.LarryElder.com. Follow Larry on X @larryelder. To read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.
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