The admin of the ADF's blog has a post responding to this column by Edward Lazarus about judicial independence and judicial activism. Amusingly, he titles the post Why Won't the Left Engage in Honest Debate? You'll see why this is amusing in a moment. He claims that Lazarus "fails to acknowledge that the real issue in the debate is in fact the definition of 'judicial activism.'" And he then refers to an earlier post by Jordan Lorence, where Lorence was replying to a post I had written accusing him of double talk on the subject of judicial activism. He cites the following from Lorence:
Jordan writes: ". . . there is such a thing as judges misusing their authority to impose their own public policy predilections on the people by court decrees that have no REASONABLE textual support in the Constitution. That is what I call, "judicial activism," and it does exist. Here are some indicators of judicial activism . . ."
But Lorence has shown no interest at all in having an "honest debate" about judicial activism. Indeed, he refuses to even answer one simple question, which I posed to him not once but twice in two different comments on two different posts that he wrote on the subject. Here's the question:
Simple yes or no question: was Loving v Virginia correctly decided or was it "judicial activism"? It certainly fits your criteria. There was a long tradition of miscegenation laws going not only back through American history but even back to the English common law. No court had ever struck them down before; indeed, innumerable courts throughout the country had upheld them. The equal protection clause basis for the ruling was explicitly denied by those who framed the 14th amendment, who very clearly said that the wording of the amendment was not intended to overturn anti-miscegenation laws. No court had ever recognized a right to interracial marriage before. So a clear case of judicial activism, right?
Loving perfectly fits his criteria for judicial activism, yet he refuses to answer this simple question and agree that it was a case of judicial activism. Why? Because that would be an admission that decisions he considers "activist" can, in fact, be absolutely correct. No one in their right mind today would argue, as many did 40 years ago, that Loving was wrongly decided. So he's in a bit of a bind. He can consistently apply his criteria, which would undermine his argument against "judicial activism", or he can apply it inconsistently and show that it's nothing more than an empty label being applied subjectively to any decision he disagrees with. So far, he has refused to answer that question and engage in honest debate on the subject. So how about it, Jordan and the other ADF attorneys? How about a simple yes or no?
No court had ever struck them down before
Well, there was California's Supreme Court.
I must be missing it. Clearly, the Loving decision was an activist decision. It imposed by judicial fiat, plain and simple, a legal policy tracking the cultural change that had been evolving in society. So activist decisions aren't necessarily bad decisions.
Conversely, Kitzmiller broke no new ground at all, it simply applied existing legal policies and tests, and determined that violations of these are STILL violations, and nothing has changed. So non-activist decisions are ALSO not necessarily bad decisions.
Which means judicial activism really isn't the issue at all here. If anything, the issue is whether or not legal interpretations impacting social values are a good fit for evolving change in those values.
Surely we all have what we consider good reasons to dislike decisions we disagree with, which are always going to strike those who approve of the decisions as rationalizations. And so in this context it's true that "activist" is a pejorative term meaning "made a decision I don't like." But this is politics at work, and like it or not, judges can't help but make political decisions in cases with political implications.
The funny part, of course, is that the vast majority of "activist" decisions in US history have been by a conservative court overruling popular legislation. Sometimes this was right, sometimes not, but it just boggles the mind that people made it through law school without having to consider the history of constitutional law. Kind of like Clarence not bothering to discuss or consider Roe while he was in school.
I think a definition of the term "Activist Judging" is possible. I fail to see how it is in any way useful except as a cheap debating point.
Edward Lazarus has an excellent column on this very topic over at Findlaw's Writ this week.
I'd like to congratulate myself for not reading the first line of your post, and thus making my previous comment (and thus myself) look ridiculous.
I've not gotten a straight answer about Loving v. Virginia from one of those folks yet. One that I recall, who claims to be an attorney, wrote that the reason the Virginia statute was unconstitutional was that it denied equal protection of the law to all races. I am not making this up. He wrote:
People did not have equal protection. Apparently Virginia wanted to protect the "purity" of the white race but did not care about the "purity" of the other races.
Really, I am not making this up.