Boston Review‘s Pamela S. Karlan fairly explodes the myth of the “activist judge”:
We expect judges to be impartial and independent. That is why federal judges have life tenure. But we also demand that they respect democratic choices. They should enforce the policy decisions of the political branches—local and federal—unless the Constitution commands otherwise.
It’s that “unless” that causes the difficulty. The Constitution is the “supreme Law of the Land,” so, faced with a federal, state, or local law or policy that violates the Constitution, the judge must act. Judges would violate their oaths of office if, for example, they sat back and allowed the government to put people in jail for engaging in constitutionally protected activity (remember how the Commonwealth of Virginia threatened Mildred and Richard Loving with imprisonment for marrying across racial lines?) or permitted local officials to adopt policies that undermined the federal government’s exercise of its constitutional authority (think about Arizona’s ongoing attempt to adopt its own immigration policy). At the same time, judges equally violate their oaths of office if they strike down properly enacted laws because they think those laws are unwise or contravene their personal moral or religious codes.
The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.
h/t Arts & Letters Daily