Judicial Activism, Beware a Double Standard

[Image Source: Getty / Scott Olson]

Conservatives have long bemoaned judicial activism – when a judge is suspected of ruling based on personal belief or opinion rather than an adherence to the law. Recently the most blatant case of this was when lower courts, notably the Ninth Circuit Court, repeatedly attempted to block President Trump’s ‘travel ban’. The Ninth Circuit Court is infamous for judicial activism, often heavily liberal biased, and sports one of the highest overturn rates of any circuit court in the United States at 79 percent in the period between 2010 to 2015.

The premise on which it had blocked the travel ban had no legal standing, and relied on shoddy assumptions that the President’s ban was not an exercise of his executive powers but founded upon discrimination. Nonetheless, judicial activism halted the travel ban, in clear opposition to precedent set previously by the Supreme Court in 1950 – that ‘the exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power.

The Supreme Court overturned these lower court rulings, with not even the most liberal Justices agreeing with the lower court’s ruling. After a series of further legal hurdles, a third revision of Trump’s travel has now taken effect.

This brings us to the issue with judicial activism – the law is written, and power is given to judges upon the premise they interpret the law so it is possible to apply. When judges step out of line, and abuse their power to advance their own moral agenda, there no longer exists a separation of powers nor accountability. Conservatives have been quick to decry liberal judges and courts when this happens, and as they should. However, as is often the case, people don’t look backwards.

Republican candidate Roy Moore lost a crucial Senate seat race in Alabama yesterday, and despite crippling allegations, lost it by a razor thin margin. While conservative candidates are almost always popular in deep Red Alabama, early in Moore’s campaign, he enjoyed even more popularity than most candidates.

Moore had the distinction of beating out Trump-backed establishment Republican Luther Strange in the primaries, no easy feat, especially as Trump had enjoyed an over 25 point victory over Clinton in the Presidential elections a year ago. Part of his appeal, in many ways, was similar to Trump. He was an ‘outsider’, fiercely anti-establishment and carried the same ‘flare’ that Trump had – a disregard for political correctness, and a combative conviction in his ideas.

However, troublingly, part of Moore’s appealing resume were the controversies he was involved in during his tenure as a judge and chief justice. Moore has, on separate occasions, disregarded federal and Supreme Court orders in favour of his own convictions. He was notably suspended, then resigned, as Alabama’s chief justice when he ordered lower courts to disobey the Supreme Court’s ruling on same-sex marriage.

His ethical violations included a ‘unwillingness to follow clear law’ and ‘abuse of administrative authority’. He has also commented repeatedly about God’s sovereignty over the ‘affairs of men’, being the Constitution of the United States. While the freedom of religion is a cherished one in this nation, religious doctrine cannot and should not supersede the supreme law of the land.

Regardless of whether we personally agree or disagree with the actions that Moore took, principled conservatism should let the hammer fall on acts of blatant misuse of power, regardless of which side of the aisle they originate from. However, contrary to this, it seems Moore had instead derived popularity from a conservative base through this, a marker for a dangerous level of partisanship that exists now in today’s political climate.

Conservatism should thrive on principle and policy, and not a pursuit of cheap victory at the expense of ideological integrity.

One thought on “Judicial Activism, Beware a Double Standard

  1. I mostly agree with you but have to leaven that with the thought that principles don’t win wars and we are in a war with our domestic enemies, the liberals and progressives. There are times and places where “rough deeds,” deeds that violate the pure expression of principles, must be performed lest those self-same principles be declared illegal under the new regime.


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