Blaming the judiciary for “legislating from the bench” is simply a way for legislators to divert attention from the fact that they have not done their legislative job well. Judges attempt to interpret the law as written when the law is unclear, and when necessary the Supreme Court interprets the Constitution as it applies to the law being considered. I will push legislators to do their full jobs as legislators by rewriting and clarifying the laws (or seeking to amend the Constitution), rather than passing the buck to the courts. When Supreme Court decisions are clearly at odds with the preferences of the people in general, constitutional amendments should be sought. We should keep clear in our minds that it is not the job of the Supreme Court to decide whether something is “right” but only whether it violates the law (e.g., the Court does not decide whether abortion is morally right or wrong, but only how abortion is affected by our existing laws).
Ideas about our democracy have changed since the Constitution was written, so much so that “originalist” judges in the Supreme Court insist that we try to understand what the framers meant by what they wrote instead of “reinterpreting” what they wrote to fit today’s environment. The mere fact that we must make the effort to do that shows that we do not readily understand what the framers meant and could very well get it wrong in our current efforts, since individuals (even judges) tend to think that their own framework of understanding things must be or should be universal and therefore that what they think the framers meant must be what they meant. This proves that we need a Constitutional Convention to clarify all of the assumptions made by Congress and the courts about what our Constitution “means.” This is too important an issue to leave it to a few individuals instead of the whole body politic.
The concept of Republicans and Democrats each trying to appoint people to the Court who will reliably vote conservative or liberal is anathema to justice and fairness, and both parties should be ashamed of themselves for doing this. Justice should always be reasonable and in the best interest of the country as a whole. There are still many people in our country who can set aside their own views and biases in order to do what is right and lawful, and Supreme Court justices should be appointed from this group. I will nominate to the Supreme Court only persons who think independently about judicial matters and who demonstrate the ability to consider the law objectively even when in some instances that goes against their own political philosophy.
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