Long before the United States Constitution was ratified, Americans displayed a deep skepticism of the judiciary. Codification of extremely detailed and complex laws was the palliate to judicial activism. People believed that if the laws were all published and readily accessible, judges would have less ability to substitute their own personal values and predilections for the will of the people, established through the legislation promulgated by their chosen representatives. Hamilton's first essay on the judiciary assured New Yorkers that "the judiciary is beyond comparison the weakest of the three departments of power" and that "the liberty of the people can never be endangered ... so long as the judiciary remains truly distinct from both the legislative and executive." But history has revealed that the judiciary wields great power in its ability to engineer social change under the guise of "interpreting" the Constitution or statutes. Judicial activism is not only quite often expected, it is also praised-by those who support the result.
A significant distinction must be made, however, between a good decision and a desirable result. A good decision is a principled one: a decision reached by using accepted tools of construction and recognizing both the appropriate role of the judiciary as the nonpolitical branch and the limited role of the judiciary in deciding social policy, regardless of whether the decision-maker necessarily agrees with the outcome. This distinction is too often glossed over by those who find that the end, which is necessarily value-laden, is justified by the means, usually judicial overreaching. However, the integrity of our tripartite governmental structure simply must be elevated over the expediency of a desired result. A contrary approach leads to judicial legislating such as that of Roe v. Wade, which robs the people of their ability to discuss and decide controversial issues for themselves, and to "truisms" such as that offered by one lawyer: "I don't want to know what the law is, [sic] I want to know who the judge is."
The presidential election debacle in Florida epitomizes judicial overreaching in order to obtain a particular result. While most Americans watched the goings-on as a fascinating, or frightening, political battle, those in the legal profession understood the serious implications of the court's being drawn into that battle. The opinions of the Supreme Court of Florida-once stripped of their ramifications for the presidential candidates-were simply unjustifiable as good legal decisions. The court issued two significant opinions during the thirty-six day election: Palm Beach County Canvassing Board v. Harris, ("Palm Beach") in which the court suspended a statutory deadline as an exercise of its "equitable" power, and Gore v. Harris, in which the court ordered a statewide manual recount of undervotes for presidential candidates. Neither opinion bears close scrutiny. In their apparent haste to reach a desired result, the justices departed from traditional standards of review, gave mere lip service to canons of statutory construction, clearly departed from legal precedents, and reached a conclusion antithetical to their purported purpose of ensuring the integrity of the rights of Florida voters. In so doing, the court abdicated its limited role in the operation of our government-a role that does not include choosing a President.
Hammond, Theresa H.
"Judicial Jabberwocky in the Presidential Election 2000: When Law and Facts Collide with Politics,"
Mercer Law Review: Vol. 52:
4, Article 16.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol52/iss4/16