Lately, the blogosphere has seen debates on two seemingly unrelated issues. There is the debate over the use of the term, “judicial activism,” which was prompted by UK law professor Lori Ringhand’s study on the subject. The New York Times subsequently opined on the subject here, and Bluegrass Report mentioned the study here. The second debate considers the affect that the recently-relaxed Judicial Canons (see here and here) have on judicial candidates’ free speech rights and the conduct of Kentucky’s judicial campaigns in general. Michael Stevens has opined often and at length on the subject, most recently here. What nobody seems to be discussing is how these two subjects are closely related.

Imagine for a moment a legal landscape where judges were able to divorce their own beliefs, prejudices, preconceived notions, and ideologies from the task of judging. What if the question of whether a certain legal rule or statutory enactment was good public policy or not, could be completely divorced from the unrelated question of whether the given rule or statute was constitutional? Imagine what that kind of legal environment would mean for the practice of law, and especially for future judicial elections.

Such a legal environment would render completely immaterial whether the judge in question was a liberal or conservative, a Democrat or a Republican, or a challenger or an incumbent. In this environment, every judge and judicial candidate would have the intellectual honesty and – dare I say – the courage to separate their own views of what is a good idea, or what may be good public policy, from their ruling in court on what is constitutional. Then, the judge’s personal views on, say, the propriety and necessity of the Partial Birth Abortion Act or the execution of murderers under age 18 would not affect that judge’s ruling in a case determining their constitutionality.

It is the concept of the evolving, or “living,” constitution that has made our judicial elections so contentious and Federal judicial confirmation hearings so frustrating to watch. For the uninitiated, the “living constitution,” which was advocated by such luminaries as Supreme Court Justice William Brennan and still haunts our jurisprudence to this day, is a theory of constitutional interpretation that basically puts each judge or justice on a pedestal, at the apex of power in our constitutional republic. Each judge, and each generation of judges, has the opportunity to redefine for itself what the constitution means. As pointed out by this excellent post by Jordan Lorence (and I encourage you to read the whole thing), the concept of the “living constitution” means that things that were once constitutional no longer are, because the more modern, enlightened judiciary deems the former constitutional construction to be out of step with society’s evolving values.

So, in our republic, who gets to make the decision about what society’s evolving values are? Under the “living constitution” theory, it is – you guessed it – the judges. The judiciary decides when we have outgrown, or when the opinion of the world community has sufficiently turned against, formerly constitutional practices like executing 17-year old murderers.

We may even agree that such a public policy is revolting, immoral, disgusting, or not befitting the evolving values of a civilized society. But the problem with allowing the meaning of the constitution to continually evolve and change as public opinion changes, or as the composition of a given court changes, is that such a mode of interpreting the constitution injects the personal opinions, prejudices, and preconceived notions of the judge into the equation, and substitutes them for the firm protections afforded us by our constitution. This kind of constitutional interpretation has caused us to turn our backs on the Rule of Law, which requires that ours “be a government of laws and not of men.” (Mass. Const., Part I, Art. XXX (1780).) In other words, the law becomes whatever the men (and women) in black robes say it is. Compare this current judicial reality with Article VI of the U.S. Constitution, which declares (my emphasis added):

This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution says that it is the supreme law of the land, not the evolving interpretation of it that changes with each judicial confirmation or election. What the judiciary may “give” us, in terms of constitutional and statutory interpretations with which we agree, a future court or judge has the power to take away. Under the prevailing theory of constitutional and statutory interpretation (assuming you can even refer to it as a single, unified theory), our rights, interests, and freedoms are never safe and are always subject to redefinition, revision, or elimination at the whim of the judges we appoint or elect. The same Court that gave us the much-celebrated (on the political left) decision in Roe v. Wade also gave us Plessy v. Ferguson and Dred Scott v. Sanford.

In conservative circles, the “living constitution” theory and “judicial activism” are often synonymous, because both concepts involve judges making the law, as opposed to simply interpreting the law and applying the law to the factual situations before them. As Lorence points out, judicial activism is often evidenced by several symptoms: (1) adherence to the idea of a “living constitution”; (2) extracting new “rights” from a constitutional text that is silent on the issue on its face; (3) ignoring past precedent to reach the outcome the jurist desires; and (4) making broad public policy pronouncements divorced from legislative direction. (On this fourth symptom, Chief Justice Roberts’ confirmation hearing discussion concerning baseball umpires is directly on point.)

To be sure, not all four of these symptoms present in all activist judicial decisions. Yet note that none of these four “symptoms” necessarily involves invalidating a statute or overturning precedent. This is why Professor Ringhand’s supposedly “objective” study of judicial activism misses the mark. She sets up a strawman by defining judicial activism in a way completely divorced from conservatives’ actual criticisms of the judiciary.

So what does all of this have to do with Kentucky’s judicial elections? Everything.

We now live in a country – and a Commonwealth – that is seemingly willing to subordinate the popularly elected legislative and executive branches, who are elected to make our public policy, to the judiciary. So long as that is the case, the public needs to know – and has a right to know – what is the supreme public policy and ideology that may at some point supplant that enacted into law by the “political” branches. For so long as the judges’ ideologies, and their personal beliefs as to what is “appropriate” public policy, are allowed to supplant the text and/or original meaning of our state and Federal constitutions and laws, then the electorate should have the right to demand accountability from their judges for those ideologies and beliefs. And by allowing candidates to recite little more than their names and resumes, the electorate’s right to know what policies will be enacted or declare in their name is ill-served.

Adopting Mr. Stevens’ suggestion of appointing Kentucky’s judges instead of electing them will not solve this problem. It will only shift the inherent tension between the legislative and judicial branches from the ballot box and campaign trail to the legislative confirmation hearings. Witness the politics involved in the U.S. Senate and its Judiciary Committee over the confirmation of judges for a foretaste of what would happen if Kentucky moved away from electing its judges. Different forum; same result.

We live in a representative republic, where the electorate will demand accountability for political decisions made in its name. For so long as the judiciary continues down this path of substituting its political judgment over that expressed in our constitution and enacted into our laws, the “political” nature of Kentucky’s judicial campaigns will continue. The judicial branch cannot at once decry the “political” nature of the current judicial campaigns and yet continue to make the sort of decisions that should be left to the political branches. This crisis is not one involving too much judicial speech; it is a crisis of unrestricted power of judges to shape our public policy. This crisis – if you believe it is one – is one of the judiciary’s own making. It is therefore now up to the judiciary to accept responsibility for it and to show us the way out.