The Senate confirmation of Justice Samuel Alito this week marked the continuation of what will hopefully become a seismic shift in the composition of the Supreme Court and in the administration of justice in America.
With Alito’s confirmation, and with the previous confirmation of Chief Justice John Roberts, there can be no doubt but that President Bush has left his mark on the Supreme Court. And, with the continued aging of the existing justices (Justice Stephens is now 85), it is not inconceivable that the President will have a third opportunity to put a qualified jurist, with a philosophy of judicial restraint, on the nation’s High Court.
In spite of the partisan bickering that led to the Senate’s 58-42 confirmation vote for Justice Alito, Americans must realize that the determination of which judges will fill the Supreme Court’s nine seats is not just another Republican versus Democrat battle.
Supreme Court justices have the power to either preserve or erode our right to be governed by our democratically elected representatives. Since the 1960s the judicial branch has been increasingly infiltrated by liberal activists intent on making, rather than merely interpreting, law. Activist judges have undermined Americans’ right to be governed by their elected officials. This has been especially true in the arena of social policy, where matters of great concern like abortion, school prayer, and the definition of marriage have been taken out of the purview of the elected branches of government.
Unfortunately, we have seen countless examples of legislatures, at both the state and federal levels of government, acquiescing to the judiciary’s power grab. The idea behind checks and balances was to ensure that one branch of the government did not overrun the others, but in all too many instances legislators have been only too happy to allow the judiciary to make "the tough calls."
The attraction of this arrangement to the judiciary is that they can impose their will on the people through only a few votes. Five out of nine votes prevail in the Supreme Court. Mustering a majority of both houses of Congress is a much more difficult task. Legislators benefit from allowing the judiciary to usurp their authority because they are able to avoid making difficult, politically polarizing decisions.
Professional politicians are only too happy not to have to deal with "dicey" issues such as abortion, school prayer and gay rights. If they don’t have to make the tough calls, the voters are less likely to become unhappy with them and the likelihood that they will perpetuate themselves in office is increased. The result? The activist judges are happy, the legislators feign outrage at the judiciary, and the voters don’t hold their elected representatives accountable because, after all, "it’s not their fault."
"We the people" are certainly empowered to call judges to account for misdeeds on the bench, but the avenues for taking such action are usually seen as too drastic or difficult to make them politically tenable. Consequently, we are slowly but surely becoming a nation that is governed by unelected, largely unaccountable, judges. And make no mistake about it—oligarchy and democracy are not the same.
While I am hesitant to make predictions about Justice Alito’s future on the Supreme Court, I am at least hopeful at the signs that both his career and Senate testimony have given us. We need to fill our state and federal courts with judges who understand the necessity of their role—safeguarding our constitutional and other legal rights—while also understanding the limitations of that role (deciding the narrow issues before them).
We can only hope that President Bush will have the opportunity to put yet another such justice on the Supreme Court before his second term ends.