Engaged Judges Needed to Protect Vital Freedoms

To those locked in the power struggles between right and left, adverse court decisions are frequently lambasted as "judicial activism." When the Supreme Court struck down Washington, D.C.'s gun ban under the Second Amendment, cries of conservative "judicial activism" echoed across newspaper opinion pages. When the Court ruled that American citizens accused of terrorist crimes were entitled to certain constitutional rights, cries of liberal "judicial activism" went up.

The only thing the right and left agree on is that the judiciary should stay on the sidelines (unless the other party is in power) while the political elite fight over which faction gets to control the lives and wallets of ordinary Americans. Each side has intellectuals in universities and think tanks working toward the common goal of delegitimizing the courts and their duty to protect our liberty from the political process.

This aversion to judicial review is rooted in a belief that judges cannot be trusted, and will use ambiguous laws or constitutional texts to impose their personal values on us. In this view, if given an inch, judges will take the proverbial mile, and soon our democracy will be a tyranny of emperors in black robes.

But this caricature presents a false choice between supposedly laudable judicial restraint and judicial activism. It is simply not the case that we must choose between forcing the courts to do almost nothing or letting them run wild.

Proof that this is a false choice can be found in California's Sierra Nevada Mountains. In the late 1990s, the resort town of Mammoth Lakes declared pristine forest "blighted" to use statutory redevelopment powers such as eminent domain on behalf of politically influential private developers. In 2000, the California Court of Appeal struck down this brazen attack on property rights, ruling that state blight law applies only to urbanized land that is so rundown as to be a danger to the community.

The Mammoth Lakes case was the first in what became a series of major decisions over the last decade by the California courts protecting property owners across the state from abuse of the state's redevelopment law. This judicial engagement on the issue of property rights has not led to widespread, random, or "activist" court opinions striking down legitimate government programs.

To the contrary, the principled decisions of California's engaged judiciary have not only protected traditional property rights, but they have also strengthened democracy. By exposing a pattern of illegality among local redevelopment agencies across the state, the California judiciary has become a trustworthy source of insight for the wider political debate over whether the California Legislature should abolish redevelopment agencies.

This is how the judiciary should function: a coordinate branch of government applying the law in specific cases. Meanwhile, on the political side, Governor Brown is free to lead his sensible push to eliminate redevelopment agencies, and those agencies -- along with private developers, bankers, lawyers, lobbyists and everyone else who profits off of so-called "blight" -- can lobby in opposition.

The "sky is falling" rhetoric that we hear in response to court decisions limiting the prerogatives of political elites -- and the now obligatory chorus of "judicial activism" -- tell us nothing about how judges should fulfill their role in protecting citizens from government overreach. Indeed, criticism of courts is usually issue-specific (guns, gays, campaign finance) and flows from the disappointment politicians, political activists and political commentators feel when they discover that they cannot force some aspect of their agenda on the rest of us. One need look no further than the ongoing court challenges to Obamacare -- with most conservatives supporting them and many liberals predictably crying "activism" -- to realize just how disingenuous and partisan the debate over the role of judges has become.

The framers of our federal and state constitutions had the foresight to create governments with checks and balances, among the most important of which is an independent judiciary. Neither the public nor judges themselves should allow the courts to be intimidated into subservience by members of the political class seeking to maximize their power at the expense of our freedom. Liberty depends on the courage of judges, and we should honor them when they display it.