The Many Meanings of Judicial Activism

John Dean (yes, that John Dean) has an interesting column at Findlaw about judicial activism. He argues what I have long argued, that the phrase has become virtually meaningless because it is thrown around so casually and without definition. He notes recent examples of liberal writers accusing conservative courts of judicial activism and conservative writers accusing liberal courts of judicial activism, with neither of them bothering to define the term at all. He also references a California Law Review article by Keenan Kmiec, a recent graduate of Boalt School of Law at Berkeley. Kmiec goes through the entire history of the phrase, which was evidently coined by Art Schlesinger in 1947. He writes:

During the 1990s, the terms "judicial activism" and "judicial activist" appeared in an astounding 3,815 journal and law review articles. In the first four years of the twenty-first century, these terms have surfaced in another 1,817 articles--an average of more than 450 per year. Judges today are far more likely to accuse their colleagues of judicial activism than they were in prior decades. And the term has assumed a prominent role in public debates, appearing regularly in editorial pages, Web "blogs," political discussion, and confirmation battles.

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.

This is the argument I have been making for a long time. In fact, I'd go much further and argue that in many cases the lack of any precise definition of the term is quite intentional. Political catchphrases are designed to be more or less empty boxes into which the listener can pour their preconceptions. In this regard, it is identical to phrases like "family values" or "support the troops". Giving precise meaning to those phrases would diminish their political usefulness.

A striking analogy, I think, is to the common creationist tactic of claiming that there are no "transitional forms" in the fossil record. Anyone who has spent any time engaging the arguments of creationists is familiar with how this one goes and the fact that you will never find a creationist willing to define "transitional form". They will never give you any criteria by which to determine whether a given fossil is or is not transitional, or any possible features a fossil could have that they would accept as demonstrating a transition. Why? Because if they did, you could easily find fossils which met their criteria and their argument would be blown. So in this regard, vagueness is a virtue - it insulates one's argument from being shown to be wrong.

In regard to judicial activism, there is a similar dynamic at work. Those who use the phrase frequently are loathe to provide a definition for it primarily, I would argue, because they know that if they do one can easily find cases that meet that definition, but the outcome of which they agree with. So they settle either on non-definitions ("I know it when I see it") or on definitions which would require mind-reading to confirm ("Judges who subsitute their personal preferences for law"). But as I've argued before, the real definition of the phrase - the real way it is used - is simply as a label for "decisions I disagree with". This is why Justice Scalia has dismissed the phrase as "nothing but fluff."