Article III Standing Ensures That Judges “Act As Judges”

June 27th, 2013

CJ Roberts in Perry had this interesting take on standing that I haven’t seen anywhere else in this context (a quick search for “Act as judges” brings up nothing on point):

This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives (emphasis in original).

What does it mean for a Judge to act as a Judge? I’ve heard Justice Scalia use this analogy many times when talking about different doctrines–he will follow it if it allows him to “act like a judge.” Justice Alito gave an address at the Manhattan Institute titled “Let judges be judges.”


But ordinary people stubbornly hold on to some old-fashioned beliefs, one of which is the idea that the Constitution means something. Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two-thirds of those polled said: apply the law as written. That’s what we mean when we say that we have the rule of law and not the rule of men.

We need to preserve that idea. Judges are not scientists, and they should not be constitutional rubber stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution. And they should not aim to be theorists or crowd pleasers. Let judges be judges. For if they are not, our legal system as we know it will fade away.