What is Judicial Review?

Treating Geraldo Rivera as if he were a legal intellectual may be silly, but more people see him on TV than read law books, so here goes. Geraldo said that one person's judicial activist is another's sound jurist. No, it is not.

A judicial activist is anyone who uses anything other than the laws themselves or historical assessments, including the Federalist Papers, to shed light on what the legislators meant in order to decide cases. An ancient principle is that judges tell the law, not make the law. This was made into a principle of judicial review by the Supreme Court finding in Luther v. Borden. Luther v. Borden said that political questions will not be decided by the courts, but by lawmakers or the people themselves. Things that judicial activists consider proper to consult include sociological studies, trendy philosophy, inventive false analogies, and even religious law. The last was consulted by a German judge regarding Islam and spousal abuse in 2007. Most people, even those who favor judicial activism, would never approve of this. But once you accept the principle that "good thinking" (Justice Ginsburg's phrase) is all that is needed to make law, why is that wrong?

Judicial activism is not necessarily liberal. If Justice Scalia argued a case based on Thomas Aquinas, that would be wrong for exactly the same reason that consulting Islamic law is wrong. At no period, past or present, was Thomas Aquinas elected or delegated to create any American law. Republican government is sick unto death once anyone other than an elected official creates a law. No one, other than a trained jurist, approved by such officials, should ever decide what a law means. Either Luther v. Borden was decided wrongly, or the Supreme Court has been exceeding its authority for decades. Sorry, Geraldo.