Analysis

Judicial review is the authority granted to the judiciary to invalidate unconstitutional actions by the legislature or judicial branch. This power, when misused, creates a condition of judicial supremacy. Judges are not empowered to invalidate validly enacted laws simply because they consider them annoying, unwise, or even unjust; they should only strike down laws that are clearly inconsistent with the Constitution.

American jurisprudence requires a unique set of attitudes toward the role of government and the specific role that judges play within government. The following list outlines how the ideal judge should approach the job.

• Respect for the Constitution as Written and Originally Understood. The ideal judge understands the Constitution is a text that means what it meant when it was enacted and thus respects the traditions and history surrounding its framing. If the Constitution needs to be changed, the proper way to do so according to the text of the Constitution is by a supermajority of Congress and then ratification by the supermajority of state legislatures, all of whom are accountable to the people.
• Respect for Separation of Powers. The ideal judge understands the constitutional order. A judge is not a legislature. A judge is not a partisan politician elected to ensure certain policies triumph. Instead, a judge’s job is to objectively adjudicate disputes between parties in specific cases as guided by the rule of law. The Framers of the Constitution made Congress by far the most powerful branch of government and intended the federal courts to be weak in comparison. Members of Congress are elected by the people in partisan elections and are thus directly accountable to them. Federal judges, by contrast, are given lifetime appointments and very rarely removed from office, and, therefore, are not directly accountable to the people. Contested policies should be decided in the more accountable branch. At the state level in Arizona, the three branches of government have an analogous relationship.
• Respect for Federalism. The ideal judge respects federalism. Federalism, as originally conceived by the Framers, meant the federal government had limited power over states and localities. States retained general policy making authority and could serve as “little laboratories” of experimentation in public policy (for example, one state might practice capital punishment, and another might forbid it in an effort to deter crime). Unfortunately, the federal government legislates in almost all areas now, often squeezing out local decision making or coercing it. The ideal judge looks for ways to restore the original vision of federalism where decisions can still be made at more localized levels. The ideal judge is also more willing to rule federal legislation as unconstitutional when it imposes additional restrictions on the states.
• Rejection of International Law. The ideal judge rejects the invitation to incorporate international law (not enacted by Americans) as rules for making or influencing decisions. The judge respects the constitutional order and respects the precedents of the United States over those of foreign nations.
• Respect for Ordered Liberty not Equality. The ideal judge is impartial and does not favor the rich or the poor (Lev. 19:15). The activist judge is partial and “fixes” problems in front of them regardless of the law or constitution. The ideal judge respects the rule of law and follows the laws of the jurisdiction, obeying his role as an adjudicator not considering politics or outcomes. So, for example, this could mean a Republican judge might rule against a Republican candidate who disputes the outcome of her election because the law does not favor the politician’s arguments. Or a pro-life judge could rule that a pro-life law is unconstitutional under a pro-abortion state constitution, even though he wishes the state constitution protected unborn life instead of harming it.