I sat listening to Judge Alito’s comments after accepting Bush’s nomination to be the next associate justice of the Supreme Court, and a phrase stuck. It has been uttered countless times in recent years to describe the Constitutional role of the judiciary. Alito stated:
Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system. (emphasis added).
“Limited role”? Since when has the Judiciary had a limited role? Limited as compared to what? The Constitution establishes three equal branches of government to give a system of checks and balances. We never say the Legislative branch has a limited role in writing law or that the Executive branch has a limited role to take care that laws are faithfully executed? Why are we using this phrase “limited” to describe the judiciary?
The answer lies in how the Court’s interpretation of the progeny of New Deal legislation has been viewed by conservatives. This legislation includes, for example, laws passed to rectify past discrimination, environmental laws, and the Violence Against Women Act. Many conservatives view the Court’s interpretation of some of these laws as “activist” and the judges are described as “legislating from the bench.” As a way of reigning in the judiciary, conservatives adopted the language heard today.
The term “limited role” gives the impression that the court is somehow weaker than the other two branches. The judiciary is not. Are legislators or executives overstepping their bounds when they tell the public what the law is? But Marbury v. Madison establishes that it is the court’s job to say what the law is. Are Congressmen, therefore, “legislative activists” when they say what the law is? Why don’t we call them such? Do we hold the judiciary in such low regard?
We all know that both sides call judges and rulings “activist” when the case does not agree with their side. Knowing this, we should recognize that this new language has little import other than being partisan fodder. We are above this. A Supreme Court Justice is no more limited in Constitutional power than the President or the Congress. We must remember that no branch is beholden to the other. Were it not so, there would be no real checks and balances.
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