Sovereignty and Activist Judges

Both citizens and states have cognizable rights under our federalist system of government, the regime set up by the Constitution and Bill of Rights. Activist rulings by federal judges chip away at both sources of sovereignty.

By Andrew Thomas | March 5, 2013

In its current term, the U.S. Supreme Court will weigh in on many crucial and emotionally charged issues affecting the nation. These range from voting rights to same-sex marriage to race-based college admissions policies. The intensity of these disputes was on full display on February 27 during the court’s oral argument on the Voting Rights Act. Unusually visceral questioning from Justices Antonin Scalia and Sonia Sotomayor, representing opposite ends of the court’s ideological spectrum, offered a glimpse into the raw conflicts coming to a boil before the high court.

What is often lost in these debates is recognition of a core casualty of judicial activism. Activist court rulings—i.e., those judicial decisions that reflect the personal and political opinions of judges, rather than respect for democratically enacted laws and public votes—inflict real damage on our government, society and persons. Such decisions are not just corrosive of the rule of law. They are a direct assault on our sovereignty, as defined by our Constitution.

Activist judges undermine our sovereignty as Americans in two distinct but related ways. Their rulings threaten our liberty as persons—by empowering others to improperly impact our basic freedoms, and by limiting our ability to approve laws, directly or through representatives, that express our individual will. They also erode the rights of the fifty states that make up this nation. Both citizens and states have cognizable rights under our federalist system of government, the regime set up by the Constitution and Bill of Rights. Activist rulings by federal judges chip away at both sources of sovereignty.

To understand the damage wrought by decades of federal judicial activism, a good place to start is the war on crime. For the past fifty years, the federal courts have minted a wide range of new rights for criminals and criminal defendants. As criminal offenders have amassed new ways to avoid justice, the new, judge-created regime that has taken root brought real and dangerous consequences for average citizens and their autonomy over their affairs.

The main cluster of criminals’ rights sprouted from edicts of the U.S. Supreme Court in the 1960s. Courts have ruled that incriminating evidence can be thrown out of court, and not used against accused criminals, if the search and seizure by police which uncovered the evidence violated the Fourth Amendment (Mapp v. Ohio, 1961). This so-called exclusionary rule punishes not just the police but members of the public, as criminals often are allowed to go free when this evidence is jettisoned.

Arrested criminals who freely confess their crimes to police officers can have those confessions tossed if police did not inform them, before those confessions, of their right not to cooperate with law enforcement (Miranda v. Arizona, 1966).

The practical effect of these rulings is that a large percentage of crime victims no longer receive justice. The sharp drop in clearance rates, or the rates at which police “clear,” or solve, crimes following these court rulings proves the point. Clearance rates for violent crimes were fairly stable for the years 1950 to 1965. However, they plummeted after Miranda. They are now 25 percent below the pre-Miranda clearance rate. Simply put, one out of every four victims of a violent crime today does not receive justice because of this decision. A similar drop in clearance rates for property crimes also occurred.

Prisoners have acquired other rights that sap the sovereignty of law-abiding citizens. The Eighth Amendment to the Constitution prohibits “cruel and unusual punishments.” Courts have found this to be a highly elastic term, which they have stretched over time. The U.S. Supreme Court has ruled that the Eighth Amendment must be interpreted so that its meaning is not “static,” but reflects instead “the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 1958).

As a result of this slippery standard, inmates have gained the right to sue the taxpayers over the adequacy of their health care (which of course is free of charge to them) and their living space. Court-imposed “overcrowding” standards have forced states to release thousands of convicted criminals to avoid sanctions. Two years ago, the U.S. Supreme Court ordered the state of California to release 46,000 inmates, or about one-quarter of its inmate population, because their conditions were allegedly “cruel and unusual punishment” (Brown v. Plata, 2011). In dissent, Justice Antonin Scalia called the decision “staggering” and “absurd.”

The latest installment in this court-defined “evolution”: In 2012, a federal judge in Massachusetts ordered prison officials to provide a sex-change operation for a transsexual inmate, at taxpayer expense.

The death penalty also is under siege. It has become an empty threat to would-be murderers because of years of execution delays resulting from endless appeals and other fruit of judicial activism. Recently, the U.S. Supreme Court struck down state laws making it a capital offense to rape a child (Kennedy v. Louisiana, 2008). The court overruled the right of individuals to pass such laws in their representative assemblies, substituting the court’s own “independent judgment” in making this ruling. “When the law punishes by death,” the court wrote, “it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Aside from begging the obvious question, What of the “brutality” of a child rapist?, the decision was contrary to the history of the Eighth Amendment. At the time of the framing of the Constitution, rape was a common capital offense.

The attack on sovereignty by federal judicial activism is equally clear outside the criminal arena. The rights of illegal immigrants have trumped the rights of U.S. citizens in federal court cases. The U.S. Supreme Court has decreed that illegal-immigrant children are entitled to free public school education (Plyler v. Doe, 1982). While such a policy reflects an understandable desire to provide for the welfare of such children, the fact remains there is no provision in the Constitution permitting an overriding of state laws to achieve such a federal mandate.

Arizona’s omnibus crackdown on illegal immigration known as Senate Bill 1070 fell prey to the same judicial scythe. Last year, the U.S. Supreme Court struck down key provisions of this Arizona law. One was the so-called trespass provision, which authorized police to arrest anyone a police officer has probable cause to believe has committed an offense that makes the illegal immigrant removable from the United States (Arizona v. United States, 2012) (Disclaimer: This writer helped draft Senate Bill 1070).

Rulings on immigration law not only strike at the sovereignty of the United States as a whole vis-à-vis other nations. These and comparable decisions from the federal bench are an affront to the everyday sovereignty of U.S. citizens as individuals.

By empowering criminals and others who challenge an individual’s right to properly and lawfully manage his own affairs, such rulings endanger the lives and property of citizens and rob them of rightful individual autonomy. There is an obvious fiscal impact as well. Criminals and illegal immigrants expropriate tax dollars from citizens, as money must be laid out to pay for the institutions that house or give health care or other benefits to either group. The same is true of judicial encroachments on individual sovereignty in other policy contexts.

There is one other important victim in all of this: the states. The Tenth Amendment to the U.S. Constitution, part of the original Bill of Rights, was written to preserve the rights of states. This amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Under our constitutional and federal form of government, states have cognizable rights. States may sue in federal court, as we saw in the recent Arizona immigration decision. But states’ rights have been plowed under by federal court rulings that act as if such rights are a quaint relic of bygone times. Activist federal judges have eviscerated the traditional rights of states by overturning state laws designed to ensure individual and state liberties.

It is time for voters and policymakers to acknowledge that federal judicial activism is more than a fundamental challenge to self-government. It is a direct assault on the basic sovereignty of citizens and states—and, as such, something that should concern all defenders of liberty.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to

SFPPR News & Analysis.