ADF's Double Talk on Judicial Activism

The Alliance Defense Fund now has a blog called Constitutionally Correct. A couple of recent posts on that blog serve to demonstrate how completely meaningless the phrase "judicial activism" is when it's used by social conservatives. In this post, they take the New York Times to task over this op-ed, which cites a study by Lori Ringhand concerning judicial activism. In her study, Ringhand used the only objective definition of judicial activism - how often a judge votes to overturn legislative actions or its own precedents - and concludes that Scalia and Thomas are actually more activist than their liberal counterparts. The ADF says this is too loose a definition:

This is totally wrong. The Supreme Court does not engage in "judicial activism" when it reverses one of its own wrongly decided precedents such as Plessy v. Ferguson which was overruled by Brown v. Board of Education. The segregation laws violated the Constitution, so the Court declared them unconstitutional. "Judicial restraint" is not properly defined as "upholding every law passed by the legislature," and "judicial activism" is not defined as just "striking down laws approved by the people."

But of course, this is precisely how so many conservatives use the phrase. We hear this rhetoric constantly, where a judge is called an "activist" because he overturns "the will of the people". The other thing we hear constantly, including in this very post by the ADF, is that courts are "activist" when they "legislate from the bench". But if any ruling can legitimately be defined as activist in that sense, it is Brown v Board of Education. That ruling did not merely declare segregation unconstitutional, it also ordered specific policy changes to implement that ruling, specifically forced busing. By any reasonable definition, that would certainly qualify as "legislating from the bench". But the ADF can't say that because Brown is considered sacrosanct today (and I'm not saying it was wrongly decided, I'm just saying that it clearly is an example of legislating from the bench by any objective definition of that phrase). Ita ll just points up the fact that such phrases have no intrinsic meaning, they are just catchphrases applied to any ruling they disagree with.

The issue is whether the text of the Constitution, as informed by the intent of its framers, allows the government to enact the law or not. Judges are to apply faithfully the Constitution to any law in question and decide whether it meets the constitutional standard or not. Sometimes the laws will pass muster and other times they will be struck down as unconstitutional. So when Justices Scalia and Thomas strike down a law, they show "judicial restraint" if they are accurately applying the text of the Constitution in a given case, even though they are nullifying a popularly-selected law. When other justices, such as John Paul Stevens or Ruth Bader Ginsburg vote to strike down a law, they could be demonstrating "judicial activism" if the text of the Constitution allows states to pass such a law, and the justices are making up a new right to limit government power.

And they're right about this, but this is exactly why the phrase "judicial activism" is so meaningless. A judge can be "active" - that is, they can view the role of the court as an active one in overturning legislative actions, as opposed to a judge who is reluctant to overturn such laws and therefore shows "judicial restraint" - without any regard for whether their decisions are right or wrong. I fully agree that whether a court is "active" or "restrained" is utterly irrelevant to whether their decisions are correct, but that only demonstrates the vacuousness of using those adjectives in that manner.

More importantly, let's look at how consistently the ADF uses the phrase. They claim here that that a court ruling is "activist" if it does not conform to the true meaning of the Constitution (which means "activist" really just means "wrong" - as I've been saying all along). But in an earlier post, they accused Judge J. Harvie Wilkinson of having committed "a new form of judicial activism" by writing an op-ed opposing a Constitutional amendment banning gay marriage. If "judicial activism" really means rulings that are constitutionally incorrect, then why on earth would they apply that same phrase to an opinion piece (not a ruling) that dealt with the question of whether the constitution should be amended, not how it should be interpreted?

The answer, of course, is that the phrase "judicial activism" means whatever the person using it wants it to mean at any given time. The ADF uses it in many different ways, some of which apply perfectly to cases they claim to support and not to cases they deny. They simply have nothing approaching a coherent definition. All it means, as I've been saying for years now, is "I don't like that ruling." The actual use of the phrase is utterly incoherent, which is what leads serious legal scholars to say things like this:

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.

They're absolutely right. This is the kind of lowest common denominator, bargain basement, fourth rate thinking that no one who takes legal scholarship seriously can do anything but laugh at.