The supremacists.

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 Godgiven).

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 overstated. 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 hardcore 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 oversee 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.