Trejos: Successful democracy requires utmost respect for law, judiciary judgment
April 10, 2017
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After a failed and misguided attempt at a Democratic filibuster, Supreme Court nominee Neil Gorsuch was confirmed to the Supreme Court on Friday. While it was no surprise that Democrats did everything in their power to block the appointment of a conservative justice to the Supreme Court, some of the arguments they presented against Gorsuch displayed views about the role of the judiciary that I found downright scary. For decades, liberals have relied on the judiciary to pass left-wing policies instead of objectively interpreting the law, and this has increasingly perverted the role of the Court to that of a petty political office.
The main charge Democrats repeatedly brought against Justice Gorsuch was that he fails to rule “for the little guy,” as Sen. Dianne Feinstein (D-California) put it during the confirmation hearing. The most prominent example was the so-called “frozen trucker” case, in which a TransAm trucker was fired for using his truck without authorization to avoid dying in a snowstorm, after which Gorsuch ruled in favor of TransAm. TransAm’s actions do exemplify a company’s unfairness and wanton cruelty against its employees. However, it is important to understand the reasoning behind Gorsuch’s ruling: the law was simply on TransAm’s side.
When justices are expected to ignore the law to “do what is right,” we inject massive subjectivity into decisions that actively determine people’s lives. It is a system in which every defendant’s fate is determined by chance: who the judge is and what mood they are in. In the frozen trucker case, Gorsuch was certainly not claiming that worrying about the little guy has no place in law. Fighting for the little guy is indeed a crucial trait to look for when electing congressmen and other legislators. Gorsuch simply stands for the idea that judges — who are never elected nor given the constitutional burden of writing law — should not wield their authority to carry out their personal beliefs.
In policy, the liberal mentality of judicial activism can lead to fairly transparent abuse, as was displayed a few weeks ago when a Hawaii judge decided to block Trump’s second attempt at implementing a travel ban. Personally, I have strongly opposed the travel ban, although what I saw as the more egregious contents, such as targeting holders of green cards and sponsored migrants such as students, were removed in the second implementation. However, the reasoning behind the ruling was alarming. Judge Derrick Watson largely based his decision on the “religious animus” that he personally perceived to be the motivation behind the order, making few references to any actual laws. This ruling ultimately assumes that the man democratically elected to office with the explicit legal authority to pass this ban cannot exert their powers unless judges like Watson approve of them. In practice, it means judges like Watson have the dictatorial power to can stop whatever laws they don’t personally agree with.
Losing an election means seeing the world get worse. Presumably, one believes the other side’s policies can hurt the economy and human progress, lead to injustices and even put the country’s existence at risk. And by all means, Democrats should fight policies they do not believe in as much as they can within the political system. However, if we are to call ourselves a democracy, we cannot continue to have judges pass policies they want whenever elected representatives “fail” to do so, as is ultimately the idea behind judicial philosophies like the Living Constitution.
I am not unsympathetic about why Democrats have come to embrace the idea of judges as the ultimate lawmakers. Some core Democratic ideals have been realized through acts of judicial activism such as Roe v. Wade, which cited the “penumbras” of Constitutional rights to grant something its authors clearly never considered. However, the Supreme Court has a job to do that deserves to be carried out properly. It is there to protect what our society decided to be its core ideals in our Constitution, from freedom of speech to the right to equal treatment under the law regardless of race. Every time the court is used to push personal political priorities, our society’s commitment to these ideals is implicitly weakened. The late Justice Antonin Scalia would pride himself in a willingness to rule against his own beliefs when the law wasn’t on his side, once famously asking for a stamp that read “Stupid but Constitutional!” Such an ideal, in which judges can completely set aside their backgrounds and beliefs to dispassionately carry out the law, calls for almost inhumanly rational judgment. However, it is the only system that offers a world in which the people can honestly trust in a democratic system and in a fair hearing. Our new justice is one that will strive for that ideal.
Jose Trejos is a Weinberg sophomore. He can be contacted at [email protected]. If you would like to respond publicly to this column, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.