- Paul Stark
The difference between legislating and judging—and why it matters for the right to life
In a speech shortly after the death of Justice Antonin Scalia, Judge Neil Gorsuch, who is now the nominee to replace Scalia on the U.S. Supreme Court, explained and defended the important distinction between legislating and judging:
I want to ... suggest that perhaps the great project of Justice Scalia's career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
Gorsuch notes that the Constitution itself assumes this distinction by separating the legislative and judicial branches of government. Legislators legislate—they make law. Judges judge—they interpret and apply the law that already exists. These are two fundamentally different powers in our system of government.
"To the founders," Gorsuch says, "the legislative and judicial powers were distinct by nature and their separation was among the most important liberty-protecting devices of the constitutional design."
Indeed, if this separation of powers is lost—if a judge can act like a legislator—then "the judge would need only his own vote, or those of just a few colleagues, to revise the law willy-nilly in accordance with his preferences," Gorsuch explains. This judicial legislation would not be constrained by the "bicameralism and presentment hurdles of Article I" that limit actual legislators. And it would be extremely difficult to change the legislation "to account for changes in the world or to fix mistakes." Judges, unlike legislators, cannot be defeated at the ballot box.
"Notice finally," Gorsuch says, "how little voice the people would be left in a government where life-appointed judges are free to legislate alongside elected representatives. The very idea of self-government would seem to wither to the point of pointlessness."
Judges who act as legislators undermine our system of government. And they undermine democracy because they usurp authority that rightly belongs to the American people and their elected representatives.
Maintaining the distinction between judges and legislators, then, is very important, but it should be of urgent concern for anyone who wants to protect the equal dignity and right to life of unborn children and other marginalized and defenseless human beings.
That's because, in a particularly infamous example of judges acting like legislators, the Supreme Court's Roe v. Wade decision ruled that the American people are not allowed to provide legal protection for human beings in utero. The killing of unborn children, the Court said, must be permitted for any reason. Roe nullified the existing abortion laws that had been enacted by legislatures.
The Court nominally claimed that this right to abortion is part of the Fourteenth Amendment—even though the American people who drafted and ratified the Amendment obviously did not create or agree to any such right. (Indeed, on the contrary, the ratifiers clearly rejected the idea of a right to abortion because they enacted many state laws prohibiting abortion during the same era in which they ratified the Amendment.) But the Roe Court thought there should be a right to abortion. So they invented one. They chose to legislate rather than to judge.
Thus Roe "partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment," observed dissenting Justice William Rehnquist. Justice Byron White, another dissenter, called it "an exercise of raw judicial power."
The problems with this violation of the separation of powers are exactly as Gorsuch warns. The Court changed the Constitution willy-nilly according to the preferences of seven men. And we can't simply fix their mistake (barring a constitutional amendment) because justices cannot be voted out of office and replaced. We are stuck living under the dictates of a handful of unelected lawmakers. We are governed by abortion law that the American people never agreed to.
And the consequences are grave. Almost 60 million young human beings have been legally killed because of Roe v. Wade.
If we are to have a say about what the law will be—if we are to have the freedom to protect the rights of unborn children and others as justice requires—then we need judges who will, as Justice Scalia once put it, "dissent from this [judicial] enterprise of devising an Abortion Code, and from the illusion that we [justices] have authority to do so."
We need judges who understand that, as Judge Gorsuch says, "judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views."
We need judges who actually judge.