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Why is it wrong for judges to make law?


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At the very moment I was at my home computer pondering how to open my column for this month on the role of judges, I received a call from a relative. She shared some information on some matter and then, when finished with that, started laughing. She said that she had purchased a new television recently, trading in an ancient model for a flat-screen version with a remote control. The acquisition and upgrade, she told me, had just caused her some confusion.

She explained that when she decided to call me, she was watching a game show. She had picked up the remote and began pressing buttons. She quickly realized that she was trying to reach me with the wrong device. After sharing a chuckle upon hearing this story and then saying goodbye, I realized that my column now had the perfect segue.

Television remotes do not--even in this era of technological diversity--carry dial tones. They are designed to change channels, not place phone calls. Like any other tools, remotes are built with a purpose in mind and beyond that task their use is limited. It is the same with the judiciary. In our system of government, judges are supposed to serve a particular objective, and beyond that assignment of powers they lack the authority to act.

The topic of judicial action is timely. This summer, one federal judge ruled that key sections of an immigration law in Arizona were invalid. Another federal judge in Washington D.C. struck down regulations expanding embryonic stem cell research that were enacted by the Obama Administration. Two other federal judges in Boston and San Francisco declared same-sex marriage to be a constitutionally protected right. The U.S. Conference of Catholic Bishops agreed with the Arizona and D.C. rulings and objected to the same-sex marriage decisions.

Since my columns try to address public policy issues from the two perspectives of faith and reason, one might ask: how is the question of the judiciary's proper role relevant to our faith?

Catholic social teaching rarely mentions the judiciary. Pope John Paul II told a group of Italian judges on March 31, 2000 that a judge's "task is to see that justice is done by fully applying recognized rights and duties, and by safeguarding the interests protected by the law within the framework of fundamental ethical values."

John Paul referenced the problem of judicial activism when he said that "With good reason there is a reaction in many quarters to the idea of the [Judiciary] compensating for the omissions of the legislative power, especially when it is a question of human life and death, biotechnology, problems of public morality or essential issues of freedom, which can never degenerate into an individualism that disregards the common good."

In other words, judges must apply previously recognized rights and duties, meaning those already found in the law as passed by the people or their elected representatives. Judges should not make up their own laws.

This corresponds with fundamental political principles. In a democracy, the people are the rulers, meaning that they alone get to make the rules and they do so through majority rule. If judges assume this law-making power, then a minority outranks the majority. Majority rule is a critical element of democracy because it is the only means by which every citizen can enjoy equal sovereignty. Minority rule, especially if exercised by judges, means that some citizens are more equal than others when it comes to self-government.

But what connection do these political principles have with Catholic beliefs? The Compendium of the Social Doctrine of the Church restates the Christian conviction that all authority is rooted in God who is the ultimate sovereign. God has delegated to the whole human race the authority and duty to exercise self-rule consistent with divine moral purposes (no. 393). This delegated authority is not for judges to monopolize.

In a reflection on democracy given in 1996 at the invitation of the Pontifical Academy for Social Sciences, European philosopher Michel Schooyans explained that by virtue of God's providence, human beings are "capable of judgment and personal decision, and also, thanks to language, of discussion, debate and reflection." Guaranteeing each citizen the equal right to participate in the political decisions by which law is made "give[s] people the possibility of exercising their [God-given] capacity to reason, discuss, reflect, plan, decide, act, implement and monitor together."

God's gifts need to be put to use for the common good. Civic engagement is not the responsibility of a select few, but is the duty of all. Allowing policy decisions to be made by judges prevents individuals from responding to their divine calling to improve society.

The fact that a law is democratically approved does not automatically make that law good. The Church is mindful of the risk of political relativism that reduces moral reasoning to counting votes. The majority is not always right and what is true and good is not ultimately decided by plebiscite. However, democracy itself, and not the judiciary, is best equipped for correcting bad democratic decisions.

Pope John Paul II summed up the issue when he wrote in Centesimus Annus, "Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person." Rogue judges intent on remaking the law by imposing their own false conceptions of the human person make authentic democracy impossible.

Daniel Avila is the Associate Director of Policy and Research of the Massachusetts Catholic Conference.

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