The Truth About "Judicial Activism"

The Boston Globe had an article written by Dave Denison about judicial activism on Sunday. The results were mixed. On the one hand, Denison does a fine job of illustrating what I have said previously (here and here, among other essays), that claims of "judicial activism" rarely have any objective meaning and are really just a cover for disagreement with the substance of a decision. President Bush darkly warned of those "activist judges" who rule "without regard for the will of the people" in the State of the Union speech, while Pat Buchanan decries the "judicial dictatorship" that we allegedly live under. But these are little more than buzzphrases used by political partisans and they drastically oversimplify serious questions of constitutional interpretation. As the Globe points out,

Indeed, the charge of judicial activism has become a "ubiquitous epithet" and unhelpful "scare phrase," Georgetown law professor Peter Edelman recently noted in The Washington Post. Constitutional law scholars across the political spectrum tend to cringe at the way the phrase is used in public debate.

"It's almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about," says Harvard University constitutional scholar Laurence Tribe, who has spoken out in defense of the SJC ruling.

"Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters.

The article also points to at least the beginning of an attempt to give a more thoughtful meaning to the term and the concept:

In an article last spring in the magazine Legal Affairs, University of Chicago law professor Cass R. Sunstein offered a neutral definition of judicial activism. "A decision that is activist is not necessarily wrong," he wrote. "No one thinks that a court should uphold all actions of the other branches and so a court that is activist, in this sense, might be something to celebrate." By extension, a court that is "restrained" -- one that seldom strikes down laws or reverses bad precedents -- may be falling down on the job.

For terms like "judicial activism" and "judicial restraint" to have useful meaning, Sunstein argued, they must be modified. "A court that wrongly invalidates statutes might be said to show unjustified activism," he wrote, while one that frequently makes political decisions not remotely tethered to the Constitution might be held guilty of illegitimate activism. Furthermore, a court that wrongly upholds statutes might be said to show unjustified restraint, while a court that frequently fails to uphold clear Constitutional principles is guilty of illegitimate restraint. (The thrust of Sunstein's article was that the Rehnquist Court is acting with "illegitimate activism" -- as did the Warren Court on some occasions.)

Of course, Sunstein concedes, such terms do not eliminate the hard work of evaluating the merits of court decisions.

But the article stumbles badly when it tries to lump Randy Barnett and Robert Bork into a single category as those who advocate the doctrine of "original intent" as the primary means of constitutional interpretation:

Some originalists, or "strict constructionists," such as Robert Bork and Barnett (who makes the case in his new book, "Restoring the Lost Constitution"), believe the courts must base decisions on specific language in the Constitution and interpret it purely as it was meant at the time it was written.

I suspect that makes Barnett cringe, as well it should. Barnett's "originalism" and Bork's "originalism" are about as different as night and day, as Jonathan Rowe, Tim Sandefur's guest blogger for this month, points out in a brilliant post a couple days ago, and in this follow up post. Rowe writes:

Barnetts originalism, as opposed to Borks, is far more in line with the idealsthat is, the original principlesthat this nation was founded on. As Tim and others have reminded us at great length, this nation was founded on the principles of the Declaration of Independence. In other words, on natural right. Yet, in Slouching Towards Gomorrah, Bork explicitly rejects the Declaration and in fact reacts to it as Dracula does to a cross. An originalist rejecting the original principles of natural right that this nation was founded on. Huh? Some originalist.

Bork is actually part of a school of originalists who believe in using the formalism of the Constitution not necessarily to secure the Declarations natural rights, but often to subvert them. As Thomas West describes this ideology, this form of constitutionalism requires fidelity to the Constitution, to the institutions and mores created by the Constitution, and a willingness to turn away from the principles of the Declaration, so that they can be kept in check.

These originalists reject that the natural law encapsulated in the Declaration is part and parcel of the organic law of this nation and that federal courts may properly apply or invoke it.

And as I have noted before, Bork also voids entire sections of the constitution, particularly the 9th amendment, as though the founders put them in there for no reason whatsoever. Bork is a fake originalist. Barnett is a genuine one. I'd be very curious to hear what Barnett thinks about this comparison and hope he writes something on the Volokh Conspiracy blog about it.