Skip to comments.Alito Questionnaire
Posted on 12/29/2005 5:34:35 PM PST by Cboldt
29. Judicial Activism: Please discuss your views on the following criticism involving "judicial activism."
The role of the Federal judiciary within the Federal government, and within society, generally, has become the subject of increasing controversy in recent years. It has become the target of both popular and academic criticism that alleges that the judicial branch has usurped many of the prerogatives of other branches and levels of government. Some of the characteristics of this "judicial activism" have been said to include:
The Constitution sets forth a limited role for the judicial branch. As the question notes, in recent years there have been charges that the federal judiciary has exceeded the proper bounds of judicial authority through court decisions. My experience has taught me that any such criticism should be informed by a balanced understanding of the role that the federal courts should play.
The Constitution charges the federal courts with the duty to exercise "[t]he judicial Power of the United States," Art. III, sec.1, and as Alexander Hamilton aptly put it in Federalist 78, the courts should carry out that role with "firmness and independence." "Without this," he observed, "all the reservations of particular rights or privileges [in the Constitution] would amount to nothing." But while the federal courts should act firmly and independently within their proper sphere, they must always keep in mind that their proper sphere is circumscribed. The "judicial Power" is distinct from the "legislative Powers" given to Congress and from "the executive Power," and the federal courts must engage in a constant process of self-discipline to ensure that they respect the limits of their authority.
Judicial self-discipline is especially important when federal courts are interpreting the Constitution. In non-constitutional cases, the political branches can check what they perceive to be erroneous judicial decisions by enacting corrective legislation. Decisions based on an interpretation of the Constitution, by contrast, cannot be checked in this manner, and a thoughtful appreciation of the nature and essential limits of the judicial function is therefore acutely necessary to protect the democratic values that underlie our Constitution.
Article III of the Constitution, which is the source of the federal courts' power, simultaneously limits that power. Most importantly, Article III, section 2 restricts the jurisdiction of the federal courts to actual "Cases" and "Controversies," and this limitation necessarily means that the federal courts lack jurisdiction unless the constitutional elements of "standing" and "ripeness" are met. These elements serve to ensure that the federal courts stay within the role that courts have traditionally performed and that they are trained and equipped to perform entertaining and adjudicating real disputes that are brought before them by real parties. By restraining the courts from reaching out to decide abstract issues and nascent disputes that may not need judicial resolution, these doctrines promote better decision making, serve democratic values, and work to prevent clashes with the authority of Congress and the Executive by reserving to the political process issues that rightly belong there. In recent decades, Supreme Court decisions have stressed the importance of these constitutional restrictions on the power of the federal courts, and as a judge of the court of appeals I have applied these precedents.
Other valuable statutory and judge-made limitations on the exercise of judicial power serve similar purposes. These limitations include prudential standing and ripeness requirements, statutory and non-statutory limitations on the scope of review that courts may properly exercise in particular contexts, and the doctrine of stare decisis, which supplies essential stability to the law and is a fundamental feature of our legal system. My experience as a court of appeals judge for the past 15 years has fortified my appreciation of the value of these important limitations.
A criticism of the federal courts cited in the question concerns the overreaching in crafting and implementing remedies, an area that highlights the tension between the federal courts' obligation to discharge their proper role firmly and independently and the need to avoid inappropriate encroachment on the authority of other government institutions. When a constitutional or statutory violation has been proven, a court should not hesitate to impose a strong and lawful remedy if that is what is needed to provide full redress. Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations. At the same time, however, judges must always be sensitive to the need to avoid unnecessary interference with the authority and competence of the political branches. In addition, courts should recognize that their legitimacy is tested when they undertake in the remedial context to perform functions that are ordinarily the province of the political branches.
A paradox is inherent in our constitutional structure. The framers of the Constitution generally did not think that government institutions and actors could be trusted to refrain from unduly extending their own powers, but our constitutional system relies heavily on the judiciary to restrain itself. To do this, judges must engage in a continual process of self-questioning about the way in which they are performing the responsibilities of their offices. Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case. Judges must maintain a deep respect for the authority of the other branches of government based on their democratic legitimacy and a keen appreciation of the comparative advantages that other government institutions and actors have in making empirical judgments, devising comprehensive solutions for social problems, and administering complex programs and institutions. In addition, judges must be appropriately modest in their estimation of their own abilities; they must respect the judgments reached by predecessors; and they must be sensibly cautious about the scope of their decisions. And judges should do all these things without shirking their duty to say what the law is and to carry out their proper role with energy and independence
The above is an excerpt of the complete questionnaire - click on the source link for more.
Sam Alito's nomination is not in serious trouble. It would take something unexpected to undermine him.
I agree. But I found his answer to the judicial activism question to be a good one. Even if his answer sucked, it would be nice to have it hanging out at FR. I just happened across the Q&A at the Judiciary Committee website, and decided to translate part of it to "here."
There have been a couple of new Circuit Court nominations passing under the radar too; as well as the Senate returning the Kavanaugh nomination to the President. It's darn near a full time job keeping track of these rubes. ;-)
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