The False Cry Against "Judicial Activism"

Kudos to Steve Sanders for this article, entitled Federalists Do It Too: The False Debate Over "Activist" Judges. Sanders says what I've been saying for many years, that whenever you hear conservatives complain about judges "making law" as opposed to "interpreting the constitution", you're being fed a load of crap. Conservative judges are just as likely to be "activist" as liberal judges, and the complaints of judicial activism, on display so vividly during Bush's recent State of the Union address, are nothing more than political sloganeering, not serious statements about legal theory or practice. As Sanders puts it,

But I can't understand how someone can finish even a semester of law school and claim he can readily distinguish between "interpreting" the law (something, apparently, a card-carrying Federalist does) and "making" law (something activist liberal judges do).

Conservatives have gotten a lot of mileage with this idea. It appeals to non-lawyers who believe the proper role of judges is like turning a crank. You take the relevant inputs (facts, precedents, statutes, whatever), "apply" some law, and out pops objective, principled justice. A few more advances in Westlaw and we might not even need human judges...

But jurisprudence goes awry when "activist" judges sabotage the machinery by substituting their "arbitrary will" (President Bush's words in the State of Union) to achieve their own ideological ends. A sure sign this has happened is when the result supports the rights or aspirations of a political or cultural minority.

In short, many conservatives, full of phony populist indignation, tell a dishonest, oversimplified story to an ill-informed public. This provides cover for conservatives to appoint their own judges - many of whom are committed not to some tedious process of cranking the legal machinery, but rather to making law that reflects their policy preferences.