Judson Cox
Even judges oppose judicial activism
An interview with North Carolina Supreme Court Justice Paul Newby
By Judson Cox
The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them. – Thomas Jefferson to Spencer Roane, 1821
Judson Cox, Editor In Chief of The North Carolina Conservative (NCC):
Justice Newby, thank you for taking the time to acquaint our readers with your judicial philosophy. I just have a few questions for you this evening.
You ran on a platform emphasizing judicial restraint, could you elaborate a bit on how you define this and why you believe it to be so important?
Newby:
Judicial restraint emphasizes the "rule of law," which means that legal precedent has meaning and must be followed, and recognizes the limited role of courts in our system of government. Judicial activism, which occurs when a judge ignores precedent and imposes his personal views, is a significant threat to our principles of self-government. Our Founding Fathers were wise men who established a system of checks and balances on the powers of government. Legislators are supposed make laws, not judges.
It is the judiciary's role to interpret and apply the law as intended by the drafters. Judges should not view themselves as super-legislators who create, revise or overturn laws at will. No one died and made a judge king. Judicial activism leads to unchecked power in the judiciary, thwarting the rule of the people and undermining self-government. It smacks of elitism and erodes public confidence in the legal system. (i.e. is there law or only the changing opinions of judges?) Our system of law grew out of the English tradition which held that the law, not the king, was supreme. An activist judiciary, in effect, sets itself up as an all-powerful king able to disregard the law and the will of the people.
This results in an oligarchy, a rule of few, which certainly undermines our most basic democratic principles.
This is an untenable situation, but a difficult one to remedy. Who has the power to check a judiciary that seems to hold the final say on every issue?
Our best option is to choose judges who are philosophically committed to and practice restraint. Otherwise, we have problems such as happened in California with the question of the constitutionality of the phrase "under God" in the Pledge of Allegiance. The insertion of "under God" was debated and adopted by the representatives of the people (Congress), and signed into law by the President. If someone objects to the phrase, the proper forum for the debate is Congress, not the courts. It is inappropriate for someone opposed to "under God" to be able to seek out an activist judge to overturn this legitimate law based on nothing more than mere personal opinion.
The problem of an unchecked judiciary is not new as highlighted by this quote from Thomas Jefferson:
"The federal judiciary: an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated."
NCC:
That is certainly the editorial view of The North Carolina Conservative! One of our main motivations in starting this newspaper was to inform the voters of the views held by those who propose to lead and rule over our state.
The next question then, is obviously, do you believe judges should be appointed to the North Carolina Supreme Court as some have proposed, or voted on by the electorate?
Newby:
That is an important question. The approach of North Carolina is certainly better than that of the Federal system. In 1868, our state decided that judges would be elected by the voters of North Carolina, thereby providing accountability. An activist judge can be removed from office by a simple vote of the people. However, judges serve 8 year terms which provides stability. In the Federal system, judges are appointed for life, and there appears to be no accountability.
Even though an elected system is preferable, it is not flawless; it requires an educated electorate. Voters must be aware of the candidates' qualifications and their judicial philosophies. During this last election, there were numerous offices on the ballot and few opportunities for voters to learn who the candidates were and their positions. Removal of party affiliation prevented that shorthand form of identification from being available to most voters, and campaign spending rules prevented judicial candidates from reaching voters. The greatest threat to our electoral system is an uneducated electorate. When we have soldiers fighting and dying for our freedoms, it is not too much to ask that voters sacrifice the time to learn the qualifications and positions of the candidates. Our responsibility as citizens is to be informed before we step into the voting booth. That is why your newspaper can perform a vital service.
NCC:
That is our goal, and we thank you for making it possible in this case. As you well know, articles such as this are rare in the mainstream media.
Lastly, what, in your personal view — not necessarily as a Supreme
Court Justice — are some of the greatest problems facing our state?
Newby:
Certainly, as a state and nation, we must continue to confront the threat of terrorism; security is vital. Likewise, our state faces incredible economic challenges as many of our traditional industries are being undermined. We must find ways to transition our citizens from our manufacturing and agricultural industries to those which are now emerging.
Even more important though, is the threat to the moral and religious environment of our state. To paraphrase Alexis deTocqueville, America is great because it is good; it will cease to be great when it ceases to be good. We are witnessing an assault on our traditional family values and religious beliefs. In the past, government has recognized the importance of the role of faith and encouraged religious practice and morality. The blessings of God have made our state and our nation strong, prosperous and free. However, activist judges seem bent on removing all references to God from our culture. How long will God continue to bless a nation that renounces Him? We need judges who will respect and honor our traditional values as well as our democratic system of government.
NCC:
Again, Justice Newby, thank you for your time and your service to our state. Keep up the good work!
© Judson Cox
The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them. – Thomas Jefferson to Spencer Roane, 1821
Judson Cox, Editor In Chief of The North Carolina Conservative (NCC):
Justice Newby, thank you for taking the time to acquaint our readers with your judicial philosophy. I just have a few questions for you this evening.
You ran on a platform emphasizing judicial restraint, could you elaborate a bit on how you define this and why you believe it to be so important?
Newby:
Judicial restraint emphasizes the "rule of law," which means that legal precedent has meaning and must be followed, and recognizes the limited role of courts in our system of government. Judicial activism, which occurs when a judge ignores precedent and imposes his personal views, is a significant threat to our principles of self-government. Our Founding Fathers were wise men who established a system of checks and balances on the powers of government. Legislators are supposed make laws, not judges.
It is the judiciary's role to interpret and apply the law as intended by the drafters. Judges should not view themselves as super-legislators who create, revise or overturn laws at will. No one died and made a judge king. Judicial activism leads to unchecked power in the judiciary, thwarting the rule of the people and undermining self-government. It smacks of elitism and erodes public confidence in the legal system. (i.e. is there law or only the changing opinions of judges?) Our system of law grew out of the English tradition which held that the law, not the king, was supreme. An activist judiciary, in effect, sets itself up as an all-powerful king able to disregard the law and the will of the people.
This results in an oligarchy, a rule of few, which certainly undermines our most basic democratic principles.
This is an untenable situation, but a difficult one to remedy. Who has the power to check a judiciary that seems to hold the final say on every issue?
Our best option is to choose judges who are philosophically committed to and practice restraint. Otherwise, we have problems such as happened in California with the question of the constitutionality of the phrase "under God" in the Pledge of Allegiance. The insertion of "under God" was debated and adopted by the representatives of the people (Congress), and signed into law by the President. If someone objects to the phrase, the proper forum for the debate is Congress, not the courts. It is inappropriate for someone opposed to "under God" to be able to seek out an activist judge to overturn this legitimate law based on nothing more than mere personal opinion.
The problem of an unchecked judiciary is not new as highlighted by this quote from Thomas Jefferson:
"The federal judiciary: an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated."
NCC:
That is certainly the editorial view of The North Carolina Conservative! One of our main motivations in starting this newspaper was to inform the voters of the views held by those who propose to lead and rule over our state.
The next question then, is obviously, do you believe judges should be appointed to the North Carolina Supreme Court as some have proposed, or voted on by the electorate?
Newby:
That is an important question. The approach of North Carolina is certainly better than that of the Federal system. In 1868, our state decided that judges would be elected by the voters of North Carolina, thereby providing accountability. An activist judge can be removed from office by a simple vote of the people. However, judges serve 8 year terms which provides stability. In the Federal system, judges are appointed for life, and there appears to be no accountability.
Even though an elected system is preferable, it is not flawless; it requires an educated electorate. Voters must be aware of the candidates' qualifications and their judicial philosophies. During this last election, there were numerous offices on the ballot and few opportunities for voters to learn who the candidates were and their positions. Removal of party affiliation prevented that shorthand form of identification from being available to most voters, and campaign spending rules prevented judicial candidates from reaching voters. The greatest threat to our electoral system is an uneducated electorate. When we have soldiers fighting and dying for our freedoms, it is not too much to ask that voters sacrifice the time to learn the qualifications and positions of the candidates. Our responsibility as citizens is to be informed before we step into the voting booth. That is why your newspaper can perform a vital service.
NCC:
That is our goal, and we thank you for making it possible in this case. As you well know, articles such as this are rare in the mainstream media.
Lastly, what, in your personal view — not necessarily as a Supreme
Court Justice — are some of the greatest problems facing our state?
Newby:
Certainly, as a state and nation, we must continue to confront the threat of terrorism; security is vital. Likewise, our state faces incredible economic challenges as many of our traditional industries are being undermined. We must find ways to transition our citizens from our manufacturing and agricultural industries to those which are now emerging.
Even more important though, is the threat to the moral and religious environment of our state. To paraphrase Alexis deTocqueville, America is great because it is good; it will cease to be great when it ceases to be good. We are witnessing an assault on our traditional family values and religious beliefs. In the past, government has recognized the importance of the role of faith and encouraged religious practice and morality. The blessings of God have made our state and our nation strong, prosperous and free. However, activist judges seem bent on removing all references to God from our culture. How long will God continue to bless a nation that renounces Him? We need judges who will respect and honor our traditional values as well as our democratic system of government.
NCC:
Again, Justice Newby, thank you for your time and your service to our state. Keep up the good work!
© Judson Cox
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