The separation of governmental powers is central to the United States Constitution, just as the judicial restraint is central to ensuring proper separation of powers. It is the role of a judge to determine what the law is, not what it should be.
Determining what the law is and avoiding a declaration of what the law should be is can only be done when a judge eliminates subjectivity from judicial decision-making. This is best achieved by utilizing the originalist approach to the interpretation of constitutional provisions and statutes as much as possible. That is, a judge should interpret the law to mean what it meant at the time it was enacted.
The law should not be susceptible to evolving interpretations merely because there has been a lapse of time since its enactment. A constitution or statute may be changed only by duly enacted amendment. Individual liberties and the democratic process are best preserved and protected by this approach to constitutional and statutory interpretation.
Also imperative to our system of justice is federalism. The success of our government is in large part attributed to the ability of state and federal courts to not only coexist but complement each other. State and federal courts exercising concurrent jurisdiction must act with the greatest respect and deference to the established precedents of its sister sovereignty.
Further, federal courts must guard against undue intrusion into state law by recognizing and respecting the right of the individual states to adjudicate and enforce its own laws in its own courts.
Apart from the above referenced substantive principles, procedural safeguards that promote confidence in the judicial system should also guide a judge. Litigation by its nature ends in disappointment for at least one litigant. Nonetheless, self-help is rarely exercised, and social order is maintained because of the public’s faith and confidence in the judicial process.
A judge’s robe is not an end, but a means to maintain social order. Confidence in the judicial system is enhanced whenever litigants believe that regardless of outcome, he or she has been provided a full, fair, and expeditious opportunity to be heard by an impartial arbitrator of fact and law.
This distinction is critical to preserving the concept of majority rule through a duly elected legislative body. Our founders recognized this as one of the most important duties of the judicial branch.
The Federalist, No. 78, states: “The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would be the substitution of their pleasure for the legislative body.”
The founders wanted to avoid judicial legislation because as it is generally unchecked and circumvents the democratic process.