Judicial Activism vs. Constitutional Originalism: Which Ideology Will Rule America's Courtroom?
Judicial Activism vs. Constitutional Originalism: Which Ideology Will Rule America's Courtroom?
Part Three of a Conversation with Mat Staver
LC: Are you observing an increase in ideological divides in the American judicial system? Or are the differences in the interpretation of the law about the same as they’ve always been?
Mat: We are seeing a continuation of what’s already been, but there is a pendulum pushback against that. It started in the 1960s with the Warren Court [led by Chief Justice Earl Warren] at the Supreme Court, which became more of a judicial activist court. That’s the same Court that had prayer taken out of school. When [Warren] Burger took over the court, liberalism infected it and affected judicial decisions that resulted from it. We saw Supreme Court justices making decisions not based on the Constitution but based on their own personal preferences. Roe v. Wade in 1973 is a classic example of judicial activism. Consequently, the judicial activism that fueled Roe’s decision has been the pablum on which law school students have been fed from the fall of 1973 until 2022. Raised on judicial activism, those individuals became lawmakers. They became policymakers. They became judges. Some of them went on to become justices of the United States Supreme Court, or their state Supreme Courts. That kind of an impact also impacted supreme courts of other nations, like, for example, in Israel.
LC: Has the judicial pendulum swung back to a more originalist interpretation of the Constitution in recent years?
Mat: While we've been in this battle between judicial activism and originalism, the pendulum shift toward becoming more constrained by the Constitution began to happen under the Rehnquist Court. Now, we’re starting to see more professors in law school, although a minority, adhere to originalism. Additionally, we’re seeing the Activist vs. Originalist battle play itself out in the United States Supreme Court. It manifested in its clearest form in 2022, when originalism won over. Nevertheless, judicial activism will have long-term consequences for legal education and for the judiciary. The Supreme Court, like it or not, sets the standard for what is studied in law school. Law students become lawyers, those lawyers become judges, and some are appointed to state Supreme Courts. They then look at Big Brother, and when they see Big Brother becoming wild and untethered to the Constitution, they feel like they can do the same thing.
LC: That sounds like it could quickly lead us down a path that fundamentally changes America. Where does it go from here?
Mat: Where we are today is a turning point. We’ve had decades of this activism that has gradually been slowed. You have a lot of judges still on the bench that are products of this activism. They will eventually be retiring, and many of them have already retired. We’re seeing a pendulum shift in another direction, and that’s a positive direction toward a more restrained approach to judicial interpretation.
LC: That doesn’t sound like an overnight process ...
Mat: That's going to take decades to manifest itself, but I think that's the trend where we're headed, which is, in my view, a good trend.
Read Part One of the conversation HERE.
Read Part Two of the conversation HERE.