Judges as Umpires

[Folks, here's an old piece I wrote for my students several years ago when we were studying government and history.  I'd probably nuance differently today, but the basic thesis holds true and is quite timely.]


Thurgood Marshall once admitted that his judicial philosophy boiled down to “do what you think is right and let the law catch up.”

This is exactly what we mean by the phrase ‘judicial activism’. A man [or woman] in a black robe takes it upon himself to change a state or country whether or not the Constitution gives him that authority.  It's a quiet coup.

This is the heart of the issue. We all want to change the country, but the ultimate question is this: which side is attempting to do so illegally? It’s that simple. The Constitution lays out what our judges are and are not authorized to do. Any actions they take beyond those found in that document are, properly-speaking, illegal.  As Justice Scalia helpfully points out, if you want to change the nation, pass a law.  Don't appeal to the Constitution or its interpreters [judges] because Constitutions are adopted to impede change, not facilitate it.  Stability is their whole purpose.

He uses the analogy of being a referee or umpire in the legal system.  A judge is umpire.  He doesn’t agonize about whether the rules are fair or right or good for the future of the game.  He makes the call to the best of his ability by applying the rules. That’s all. He doesn’t have the power to make or alter the rules based on a preferred outcome! He’s just an umpire. They’re just judges.

"In the system which says that the Constitution changes and it’s up to the judges to say what it means – they really have no answers. There is no criterion for when it changes and how it changes. Every day is a new day. Some of my collegues have said that they agonize a lot. I don’t agonize at all. Sometimes it’s hard to follow and find the record in history, but you know, I don’t agonize if there’s a right to this or that. But with these guys – every day’s a new day. Last year the death penalty was constitutional and I’ll have to worry about whether it’s still constitutional next year."