Judges are stealing power from you and giving it to themselves| Justice Patrick Fischer

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Patrick Fischer is a justice on the Ohio Supreme Court. He is running for re-election. 

Despite what you may have seen on TV, as a justice on the Ohio Supreme Court, I don’t get to call out, “Order in the court!”

But I do write opinions that give a sense of order to our justice system. Order is another way of describing the rule of law, a cornerstone of a constitutional republic like ours.

Under the rule of law, we keep order by following the U.S. Constitution, which includes accepting the role of separation of powers – the executive branch runs the government day to day, the legislative branch makes policy choices, and my branch, the judiciary, ensures that the other branches comply with the Constitution.

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Like traffic on a busy highway, all goes well when everyone stays in their own lane. But a constitutional collision is inevitable when one branch grabs power reserved for another branch. All too often, it’s judges who encroach on the legislative branch — by using judicial decisions to advance policy.

Big deal, you might say. How does that affect me?

Well, it steals power from you and gives it to judges. Here’s an example. Let’s say Ohioans elect legislators committed to enacting a certain law. But an opponent of that law files suit and asks a judge to substitute the judge’s own personal perspective on that law and undo what the legislature did.

In his opinion concurring with the overturning of Roe v. Wade, Justice Clarence Thomas wrote, "In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," referring to landmark opinions that blocked states from banning contraception, sex by same-sex couples and gay marriage.
In his opinion concurring with the overturning of Roe v. Wade, Justice Clarence Thomas wrote, "In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell," referring to landmark opinions that blocked states from banning contraception, sex by same-sex couples and gay marriage.

You’d be rightfully angry, since this separation of powers violation undermined the actions you took in the voting booth.

More: Clarence Thomas calls for Supreme Court to 'reconsider' gay marriage, contraception after Roe v. Wade falls

Judges only should strike down laws that violate the state or federal constitutions. But some judges enjoy wearing two hats — judge and policymaker. These jurists use a controversial doctrine called substantive due process. It essentially gives a blank check to judges, allowing them to write policy, even though it violates separation of powers.

Patrick Fischer is a justice on the Ohio Supreme Court.
Patrick Fischer is a justice on the Ohio Supreme Court.

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The Fifth and Fourteenth amendments guarantee “due process of law,” before government can deprive someone of life, liberty, or property. There’s the process – how things get done. It’s an objective review of the steps taken by the legal system, not dependent on any judge’s personal whims. Then there’s something entirely different -- the substance, which is the outcome.

Although the exact term wasn’t adopted by the U.S. Supreme Court until 1948, the U.S. Supreme Court’s Dred Scott decision in 1857 was an early example of substantive due process in use. Chief Justice Roger Taney ruled that an African American living in the free state of Illinois was property belonging to a Missouri slaveholder.

A straightforward review of the law and the Fifth Amendment’s due process clause would have led to the logical result that someone living in a free state was free. But Taney wanted a different outcome – a prejudiced outcome.

It didn’t matter that Illinois lawmakers had declared their state to be free – Taney poured his own substantive notion – that some people can be property – into the due process clause, which allowed him to achieve his racist result. And he used substantive due process to do it.

Abraham Lincoln’s innate sense of fair play was deeply offended at the idea of substantive due process. So, our first Republican president said Taney and the rest of the court used an improper shortcut – substantive due process – to keep Dred Scott enslaved. A deplorable decision, based on dubious doctrine, yielded a despicable determination.

More: What is the 14th Amendment, and what does it have to do with Roe v. Wade?

Unfortunately, this improper rule has been shoehorned into the law on other occasions, most notable in Roe v. Wade, when the high court discovered a constitutional right to an abortion. Earlier this summer, the court reversed itself but fell short of rebuking substantive due process.

Late Justices Antonin Scalia and Ruth Bader Ginsburg, shown in April 2014, both voiced strong opinions about substantive due process.
Late Justices Antonin Scalia and Ruth Bader Ginsburg, shown in April 2014, both voiced strong opinions about substantive due process.

Lincoln took a dim view of courts wrongly stretching the due process clause from its original objective role to a subjective rubber band that allows judges to substitute their own personal – often partisan -- policy preferences for those of the people’s elected representatives.

I criticized substantive due process in a recent speech. As one might expect in the election season, my political opponents sought to smear me, falsely claiming that I somehow compared abortion to slavery. Anyone with an open mind and an ounce of common sense would see that their narrow-minded attacks were off-base and launched for partisan gain. Such is the modern political process. I’m not the only judge to raise these concerns. The late Justice Antonin Scalia spoke eloquently about this notion.

So, too, did the late Justice Ruth Bader Ginsburg, who once said, “Judges must be mindful of what their place is in this system and must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians.”

Ginsburg, appointed by a Democratic president, took criticism from some in her party for daring to agree with Republican-appointed Scalia. Like Justice Ginsburg, bullies have never frightened me. So I’ll continue to promote public understanding of and confidence in the administration of justice.

Substantive due process is an improper shortcut that steals power from the people and gives it to judges. But don’t take my word for it.

Just listen to Abraham Lincoln and Ruth Bader Ginsburg.

Patrick Fischer is a justice on the Ohio Supreme Court. He is running for re-election. 

This article originally appeared on The Columbus Dispatch: Patrick Fischer: Judges violating separation of powers to make rules