Two weeks into his presidency, on Jan. 31, 2017, President Trump nominated Judge Neil Gorsuch, one of the 21 judges on his list, to fill Justice Antonin Scalia’s seat. Democrats fought passionately against Gorsuch’s confirmation, going so far as to launch the only partisan filibuster of a Supreme Court nominee in our nation’s history. I helped lead the fight to confirm him, making the case both on the Senate Judiciary Committee and on the Senate floor, where we ultimately had to change the rules to overcome the Democratic blockade. The Senate confirmed Justice Gorsuch 54-45.
Why was the two-year battle to fill Scalia’s vacancy so hard-fought? Because today, the Supreme Court has become the preeminent arbiter of our constitutional rights. And the type of justice who serves has a profound impact on public policy and our fundamental liberties.
This would have surprised the framers of our Constitution. In Federalist No. 78, Founding Father Alexander Hamilton famously described the judicial branch as the “least dangerous” of the three branches of the federal government because it “may truly be said to have neither force nor will, but merely judgment.” That is true — in theory, at least. But history has not always borne out Hamilton’s prognostication.
Starting in the 1960s, America saw the rise of activist judges. Under our constitutional system, judges are not supposed to decide policy matters. They are not supposed to make decisions based on their own political preferences. Instead, contested questions of public policy are meant to be left to the elected branches of government so that the voters can hold them accountable.
Judges are simply supposed to apply the law. As Chief Justice John Roberts rightly put it at his confirmation hearing, a judge’s job is, like a baseball umpire’s, merely to “call balls and strikes.” (Sadly, it is a standard he has not always lived up to.)
The public has sharply different views on many policies concerning such issues as abortion, marriage, religious faith, the death penalty, immigration, and the fundamental divide between socialism and free enterprise. In a democracy, those decisions should be made by the voters, not by unelected judges with life tenure.
But decades ago, activists on the far Left decided that democracy was too cumbersome. It was too slow. And it was too difficult to persuade their fellow citizens that their policy prescriptions were sound and wise. So instead, they resorted to litigation, trying to get judges to mandate the public policy outcomes they wanted — even if the voters disagreed.
To be sure, judges should strike down laws that violate the Constitution. Some journalists and commentators have tried to define judicial activism as any time that a court strikes down any law. And in an embrace of moral relativism, a justification that “everybody does it,” they have argued that Republicans want conservative judicial activists just like Democrats want liberal activists.
For anyone principled, that is not the case. It is “activist” any time a judge disregards the law to follow his or her own policy preferences. That means it is activist whenever a judge creates a new legal “right” not found in the Constitution. And it is also activist whenever a judge tries to erase an actual right protected in the text of the Constitution.
I don’t want Republican judges or Democratic judges. There are many policy issues about which I personally am passionate (e.g., low taxes, low regulations, lots of jobs, school choice, securing the borders, a strong national defense). But it’s not the role of a judge to mandate policy outcomes with which I happen to agree. Instead, I want judges who will honor their oaths to follow the Constitution.
The court was right in Brown v. Board of Education (1954) when it struck down segregated public schools because they violated the 14th Amendment’s guarantee of “equal protection of the laws.” The court had been wrong in Plessy v. Ferguson (1896) — which Brown overruled — when it previously upheld segregated schools because the justices personally supported the policy of segregation.
The court was also right when it struck down the District of Columbia’s draconian laws prohibiting gun ownership in Washington in Heller v. District of Columbia (2008) because it violates the Second Amendment right “to keep and bear arms.”
Conversely, the court was wrong in Roe v. Wade (1973) when it created a brand new “right” to abortion found nowhere in the text of the Constitution. For two centuries, state legislatures, elected by the people, had decided questions of abortion policy. The justices took that power away by fiat.
For the same reason, the court was wrong in Obergefell v. Hodges (2015) when it mandated same-sex marriage laws nationwide. You may personally agree or disagree with gay marriage, but for two centuries, marriage laws had been policy decisions for elected legislatures — which meant that different states could come to different conclusions about the proper standards. Instead, a majority of justices decided to strike down every state marriage law with which they disagreed.
All of us know that the Supreme Court is supposed to protect our constitutional rights. It is also charged with securing our Constitution’s defining structural features, federalism and the separation of powers. Both doctrines protect liberty by dividing power, by establishing checks and balances to prevent any branch of government from becoming too powerful. The alternative, unchecked government power, while commonplace in dictatorships across the globe, would fundamentally alter the nature of our nation and what it means to be an American.
Ted Cruz, a Republican, is a United States senator from Texas.
