The debate continues to rage in this country over the proper role of the Federal courts and their State counterparts in our tripartite form of government. I have already waded into these waters in my September 16 post. This post will further discuss the current debate and hopefully shed more light than heat on this subject.

Recently, Louisville lawyer John Bush and UK College of Law Professor Paul Salamanca have published a white paper examining the jurisprudence of the Kentucky Supreme Court. Bush and Salamanca detail several examples of the Supreme Court implementing its policy preferences in seeming conflict with the policy preferences of the General Assembly. They conclude that the Kentucky Supreme Court, in tort, contract, and in constitutional cases, “has taken a fairly aggressive, and some might say overly aggressive, approach to the formulation of public policy and to the determination of where its own prerogatives end and those of the General Assembly begin.” (I encourage you to read the entirety of this white paper, as it lays out a good foundation for discussing what, exactly, qualifies as judicial activism.)

In an op-ed piece in today’s Courier-Journal, Louisville lawyer Theresa Fritz Camoriano joins in Bush’s and Salamanca’s chorus. Borrowing some of the imagery Chief Justice John Roberts used during his conformation hearings, Camoriano says that the role of judges is to serve as a referee, and not to determine in advance which team should win the game. (You may recall the Chief Justice’s characterizing himself as an umpire calling the balls and strikes, but neither pitching or batting for any team.) She summarizes the choice facing Kentucky voters in November’s judicial elections as follows:

Will we elect judges who respect the legal system and will perform their proper role, serving as impartial referees, or will we elect "super-legislators" who overstep their authority and undermine the foundations of our legal system?

Seemingly on the defensive, retired Justice Sandra Day O’Connor wrote an op-ed in the Wall Street Journal criticizing this sort of criticism of the courts. She believes that the criticism of our courts on the basis that they engage in judicial activism (also known as “legislating from the bench”) is somehow a threat to “judicial independence.” Her opinion piece equates criticism of judicial decision-making with outright intimidation and threats of violence against judges. The hyperbole is unbearable.

Responding to Justice O’Connor, Eleventh Circuit Judge Bill Pryor respectfully dissents. He makes three principal points: (1) Contemporary criticism of the judiciary is relatively mild; (2) Some unjust decisions [e.g., Dred Scott, Plessy, Korematsu] rightly deserve harsh rebuke; and (3) Judges must do more than respond to criticisms; they must exercise restraint. The opposite of restraint, of course, is activism – or, said differently, illegal judging. Judge Pryor agrees with my September 16 comments (emphasis mine):

Alexander Hamilton explained in Federalist No. 78 that judges exercise “neither FORCE nor WILL, but merely judgment.” Hamilton's point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.

Alexander Hamilton and Judge Pryor are right. Judges – whether justices on the U.S. Supreme Court or judges of the Jefferson District Court – bear the foremost responsibility for maintaining their own independence. Especially in Kentucky courts, where all judges are elected and are therefore accountable to the people, judicial independence is a function of how well the judges are able to persuade the people that their liberties and freedoms are safe in the judges’ hands.

The real value of Bush’s and Salamanca’s white paper is that it shows how this debate over judicial activism is relevant to those of us fortunate enough to live in Kentucky. This is not a debate confined to the halls of Congress and confirmation hearings in the Senate Judiciary Committee.

We must honestly debate this issue. (Even honest “progressives” can admit that questioning judicial activism is no threat to judicial independence.) The problem of judicial activism is the greatest threat to a truly independent judiciary, and it is the greatest threat to our individual rights and liberties. Judicial activism is a larger threat to judicial independence than are financial contributions to judges’ campaigns and judicial candidates telling us what political party they belong to.

If we as voters stand for a judiciary that substitutes its will for our own, then our rights are only as safe as our judges permit them to be. Once we allow our judges to deviate from the text and original meaning of our constitution and laws as they were enacted, then our written laws become mere words written on paper. It is the judiciary we empower to give us everything we want that has the power to take it all away. We as voters must resist judges who, rather than saying what the law is, tell us that the law is as they will have it be. We as voters must resist the movement – still in its infancy in Kentucky – to supplant popular elections of our judges with judicial appointments, and thereby make our judges less accountable to us. Most importantly, we as voters must resist the temptation to believe that this year’s judicial elections do not matter.