at the Project on the Judiciary's May 19, 1997 Press Conference.
Good Afternoon. My name is Alex Acosta and I am the Director of the Project on the Judiciary. I'd like to thank you all for coming to this conference. I know Mondays are particularly busy here in Washington, especially for those covering judicial matters.
We are here today to announce the founding of the Project on the Judiciary. The Project has an Advisory Council, whose membership includes, among others, the distinguished panelists that we have with us today. The Project was founded to address the increasing activism of the federal judiciary.
What then is judicial activism? At its most simple, a judge is activist when he or she confounds constitutionality with policy and makes decisions based on his or her personal beliefs rather than what the law requires. Such activism is wrong. It is the province of Congress and the States, not the judiciary, to enact policy and legislate law. The rule of law, above all else, is one of the foundations of democracy and democracy cannot afford judges who dismiss the most basic right of the people, the right to enact law through the legislature or directly through referendum. The rule of law is guaranteed by the Constitution and it is judges, if anyone, who should be acutely aware of the bounds of their power outlined by the Constitution.
Unfortunately, an increasing number of federal judges believe that their position gives them authority to ignore the Constitution and enact their personal beliefs into law. In California, Judge Henderson's decision to strike down Proposition 209 is perhaps the best known example. Of this decision, a unanimous court of appeals panel remarked: "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."
But Judge Henderson's decision is only one of many examples of the judiciary's growing activism. Examples abound.
- In Allegheny County v. Wecht, 1996 WL 474106 (3rd Cir.), for example, the Third Circuit Court of Appeals held that excluding violent prisoners from community mental heath programs could violate the Americans with Disabilities Act under the theory that violent behavior is often a manifestation of mental illness.
- In Warner v. Orange County, 1996 WL 507172 (2nd Cir.), the Second Circuit Court of Appeals held that a probation officer's recommendation that a three-time drunk driver attend an Alcoholics Anonymous meeting as a condition for parole violated the Establishment Clause.
Congress has recognized this increase in judicial activism and is taking important steps to reduce such activism. Senate Judiciary Committee Chairman Orrin Hatch (R-UT) has declared that he will oppose activist nominees. Senate Subcommittee on the Constitution Chairman John Ashcroft (R-MO) plans to hold hearings on judicial activism. And last week, the House Subcommittee on Courts held hearings to consider legislation that would curtail judicial activism. Significantly, this proposed legislation would ensure that no single judge could overturn the people's will by requiring a three-judge panel to declare a popularly-enacted referendum unconstitutional.
Such legislative measures are an important and effective way to control the spread of judicial activism. There is however, a better way. Judicial activists should not be permitted to become judges in the first place. The Project on the Judiciary will research the judicial philosophy of federal judicial nominees and disseminate that information to any interested party, including the media and the public. The Project will also undertake a public education effort, through speeches and opinion pieces. The Project's efforts will focus exclusively on reducing judicial activism. The project thus has no social or political litmus test. The Project's only concern is that a judicial nominee be willing to put his or her personal views aside and make decisions based solely on the law.
Judicial activism is not an abstract threat. Judges, contemptuous of democratic action and the separation of powers threaten the public's trust in the rule of law and in the judicial system. They threaten the foundation of our democracy. Judges cannot continue to enact by stealth those laws that the public has rejected at the voting booth.