The following is a column by Mark Shiver, host of the “What Matters in North Carolina” podcast.
Almost weekly a headline announces another judicial ruling against a state or executive action. A review of these rulings leaves little doubt that they are steeped in liberal dogma, not the law. Fortunately, in North Carolina, there is at least one jurist on the Court of Appeals who is not inclined to this type of judicial activism.
Judge John Tyson has said he believes it’s wrong for judges to write laws from the bench. In this era when judicial activism seems to be rampant, Tyson’s belief almost seems foreign.
He is not a holdout from a bygone era, but rather a jurist with the resume to back up his beliefs. Tyson has been a teacher, a probation and parole officer, an attorney in private practice, a professor of the law and a judge. He is currently serving his second stint on the NC Court of Appeals, having served from 2001-09 and now since 2015.
On the Thursday, March 16 “What Matters in North Carolina” podcast, Tyson said, “A constitutional conservative judge will leave policy decisions to the elected representatives of the people. I’m an elected official, but I am not a policymaker. That should come from our legislature, from our House and Senate, or from our Congress. Where you have a disagreement with a policy, maybe even a personal disagreement, you’ve got to remember that’s the role of the legislature to make that policy determination, and not the role of a judge to do that.”
Tyson also said, “Our job is to apply the law as written. The acts of the legislature and the Congress are presumed to be constitutional. The burden is on the person challenging that to show the unconstitutionality. And in the event some portions of a statute may be unconstitutional, you are to sever those and preserve the ones that are constitutional. That’s what you call the standard of review. That’s the way that the judge should review a case coming before the court.”
Lately it seems as if many pieces of legislation passed by North Carolina’s Republican-controlled General Assembly have fallen prey to the whims of judicial activism. Judges have struck down laws not likely because they were truly unconstitutional, but more likely because they did not fit into the liberal paradigm. However, Tyson said that a judge must follow the law.
“You have a presumption that the law is correct, regular and constitutional. You must defer the underlying policy decision to the legislative body unless it’s clearly unconstitutional. That’s the way a conservative judge does it,” Tyson said. “I am more concerned as a conservative judge about looking at what the statute and the constitution says, using the specific words that are there. Giving those words their ordinary understood meaning, not to add to them, not to make them mean something that they’re not.”
Our republic adheres to the principle of majority rule, with the Constitution protecting the rights of the minority. Tyson said that there is an understanding that policies will differ over time with the changing of the majority, and that it is the function of the legislative branch of government, not the judicial or even the executive to craft those policies. He said, it is the role of the executive branch to faithfully execute the laws that the legislative branch has adopted, and that the role of the courts is to interpret the laws that the legislative branch has adopted.
A glaring example of rampant judicial activism is on display in an article by Daniel Horowitz of Conservative Review. He wrote about regarding the two judges who placed an injunction on President Trump’s immigration executive order:
“Judges in Hawaii and Maryland officially created an affirmative right for all 7.2 billion people in the world to immigrate and get standing in court to overturn the Constitution, the social compact, the social contract, 200 years of case-law, numerous statutes, common sense, and Article II presidential power over foreign affairs. Unlike members of any other branch, their personal feelings become the law of the land under this erroneous conception of the judiciary. One district judge, which is an institution created by Congress, can now apparently stand above Congress and issue a nationwide injunction on national sovereignty.”
More jurists like Tyson would be a breath of fresh air for North Carolina and the nation. We deserve judges who understand that theirs is not the place to create policy or promote their own brand of leftist dogma. Policies can change over time as legislatures change and respond to societal changes and demands. What should not change, however is having a judicial branch that has the integrity to simply interpret the laws, and not write the laws.
Click here to listen to the entire interview with Judge John Tyson