I am back after a few days away, and while I was gone there has been some discussion in the comments about judicial activism. I don’t wanna go back and answer all of those comments individually at this point, having written a great deal on the subject in the past. Let me give a brief overview of my perspective on it instead. I don’t think the phrase “judicial activism” is inherently meaningless, but I do think the manner in which it is typically used is incoherent and inconsistent. As a general rule, I think its usage in political debates about the courts is practically meaningless because it has become little more than a catchphrase that means “decisions I don’t like.”
Keenan Kmiec had a very interesting article in the California Law Review last year called The Origin and Current Meaning of “Judicial Activism”. In it he looks at the historical usage of the term, which was evidently coined by Art Schlesinger in 1947, and at the various ways in which it is used today. He writes:
Ironically, as the term has become more commonplace, its meaning has become increasingly unclear. This is so because “judicial activism” is defined in a number of disparate, even contradictory, ways; scholars and judges recognize this problem, yet persist in speaking about the concept without defining it. Thus, the problem continues unabated: people talk past one another, using the same language to convey very different concepts.
He identifies at least 5 different meanings of the term as it is used by legal scholars, and that only begins to scratch the surface of the varied ways it is used by non-scholars in the course of political debates. Patterico, in a comment on a thread below, offers the following definition, which he says is “roughly in sync” with his own views:
The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.
It’s an interesting definition both for what it includes and what it leaves out. Notice first that it is limited only to those cases which either protect or expand individual rights. This is in line with at least one of the most commonly heard usages of the term. We tend to hear the complaint of “judicial activism” most often in response to cases which found that a given statute violates a legitimate assertion of unenumerated rights, like Griswold, Loving, and Lawrence. But why should it be limited to such cases? Certainly if judidicial decisions can overstep their proper boundaries, they can do so in cases that do not involve the finding of an unumerated right. Why do we hear so often the charge of judicial activism specifically in cases of unenumerated rights?
I maintain that we hear this complaint largely because what has become known as originalism or strict constructionism, which forms the basis for most conservative judicial theory, has a fatal error at the core when it comes to unenumerated rights. I have dealt with this in much more detail many times previously, particularly as it regards the judicial philosophy of Robert Bork and Justice Scalia and their take on the 9th amendment. For a reasonably full exposition of my views on this, see here.
Perhaps the second most common usage of the phrase “judicial activism” is when it is used to mean “unelected judges thwarting the will of the people as expressed through their elected representatives” or something similar. This is perhaps the most obviously absurd usage because, obviously, the courts were empowered to do precisely that and everyone thinks that the courts should do that when they think the legislature has passed unconstitutional legislation. Usually when we hear “judicial activism” used, it is some combination of the previous two usages.
Randy Barnett nailed this issue perfectly in this post in response to Stephen Bainbridge and Robert Bork in May of 2004:
Both posts beg the question: what exactly IS judicial activism? Unfortunately, apart from his reference to “democratic values,” Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:
Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony?
Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in the Tempting of America?
Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?
Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?
And Barnett comes to essentially the same conclusion that I do:
Judicial “activism,” as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error…
Either striking down ANY properly enacted statute is “activism” because it thwarts the “will” of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of “the Judicial Power” in Article I. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet “activism” to avoid messy issues like determing the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague “process” impropriety called activism.
I’m sure there will be more discussion on this in response to comments.