Want to Stop Judicial Activism? Start at the Ballot Box

Activist judges are a huge obstacle to enacting the Trump administration’s agenda.

Americans can point to case after case where a judge appears to put personal or political preferences ahead of the law. When courts stop applying the law as written and begin making policy from the bench, voters are right to ask what they can do about it.

There is no single cure for judicial activism, but citizens can start where they still have a direct voice: state and local judicial elections.

Federal judges are nominated by the president and confirmed by the Senate, so voters do not elect them. Many state and local judges, however, do face voters, either in contested elections or later in retention elections. Those races give citizens a chance to demand information before entrusting someone with judicial power.

In Florida, judicial races are officially nonpartisan. State law prohibits a judicial candidate from campaigning as a member of a political party, and the ballot may not identify a candidate’s party affiliation. The theory is that removing party labels protects judicial impartiality. In practice, though, it often leaves ordinary voters with less information than political insiders have.

In contested judicial elections, a candidate’s registered party affiliation should appear on the ballot. If the candidate is not affiliated with a party, the ballot should say so. A party label would not tell voters everything about a candidate, but it would give them one more relevant fact before they make their choice.

Critics will say this change would make judicial elections more political and weaken public confidence in impartial courts. That concern should be taken seriously. Judges are not legislators, and they should not promise results, take orders from party officials, or favor one side in the courtroom.

But disclosing a candidate’s party registration does not change that candidate’s beliefs or affect future rulings. It simply gives voters more information, leading to a more informed populace. Party leaders, donors, and longtime activists are often already well aware of a candidate’s political affiliation. The public should not be forced to stay in the dark.

Party affiliation is not a perfect guide to judicial philosophy, and voters should also consider a wide variety of factors—principally a candidate’s approach to the Constitution—before voting. Still, imperfect information is not the same as useless information. Citizens trusted to elect judges can be trusted to decide how much weight to give a party label.

Placing party affiliation on judicial ballots is not an untested reform; eight states already choose their high-court judges this way. Their systems are not identical, and none offers a perfect solution, but they do show that such reform is far from impossible.

To get the process of judicial reform started in other states, the first step is to find a state representative or senator willing to sponsor legislation requiring party affiliation to be disclosed in contested judicial races. State constitutions and election laws differ, so the exact path will vary. In some states, lawmakers may be able to change the ballot by statute. In others, voters may have to approve a constitutional amendment.

But legislation alone will not be enough. Engaged citizens must build public pressure for it.

Write letters and op-eds. Call local talk-radio programs. Speak at clubs, civic organizations, and other community meetings. Ask election officials to explain the current rules and what would be required to change them.

Grassroots work is slow, but it is also deeply impactful. Reform begins when citizens get the ball rolling.

Putting party affiliation on the ballot does not stop every activist ruling, and it cannot guarantee that elected judges will always follow the law faithfully. But it does make judicial elections more transparent.

If we want courts that respect the law, citizens cannot wait until a controversial ruling is handed down. We must pay attention to how judges reach the bench and insist on honest information before we vote.

The effort to stop judicial activism begins not in Washington, but with the grassroots.

We publish a variety of perspectives. Nothing written here is to be construed as representing the views of the Daily Signal.

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