More ADF Nonsense on Judicial Activism

Yet another post at the ADF blog about judicial activism, no better than the last few. This one is written by Matt Bowman, who seems to miss the point of the ambiguity of the phrase almost completely. He writes:

One can understand why Leftists don't want to debate the merits of court decisions that constitute judicial activism under any definition, because, for example, pro-abortion law professors have already conceded that whatever Roe is, it is not constitutional interpretation, but is what amounts to judicial social imperialism.

But this obscures an important point: it's not a question of discussing whether any particular ruling is correct or incorrect. Of course there are bad rulings out there, no one is every going to deny that. The question is whether using the phrase "judicial activism" to describe any decision one thinks is wrong says anything meaningful about why a ruling is right or wrong. And I maintain it means nothing more than "decisions I think are wrong." Beyond that, it tells us virtually nothing of any value.

Next, Bowman tries to define the phrase:

When social conservatives condemn judicial activism they are not simply disputing a procedural posture (declaring a state law unconstitutional), or merely saying that a decision is "erroneous" (as Justice O'Connor nicely understated it). They're saying that the decision exceeds the judge's authority. Discerning a penumbra from various Constitutional amendments, and finding there a "fundamental right" to dismember a baby is not merely erroneous. It's an example of judges seeing insufficient authority within the Constitution to justify an outcome they want--and then ordering that outcome anyway. In his thorough discussion of the phrase judicial activism, Keenan Kmiec wrote: "When explained carefully, the term can be a starting point for meaningful conversation about the judicial craft, an opportunity to ask the subsidiary questions that go beyond the superficial."

This is actually an ideal demonstration of why attempts to defend this phrase as meaningful fail so badly. In order to justify it, he has to take Kmiec's arguments completely out of context. You can find the entire article here. The tiny little snippet he takes from it comes from the very last paragraph, but ignores everything that precedes it. Kmiec's article is a discussion of all the various and conflicting ways the phrase has been used over the years, each of which he picks apart. And on the specific definitiion that Bowman offers (result-oriented judging), he writes the following:

This species of judicial activism differs in kind from the previous four because it has a scienter element. Ninth Circuit Judge Diarmuid O'Scannlain defines it as follows: "Judicial activism means not the mere failure to defer to political branches or to vindicate norms of predictability and uniformity; it means only the failure to do so in order to advance another, unofficial objective." In other words, a decision is "activist" only when (a) the judge has an ulterior motive for making the ruling; and (b) the decision departs from some "baseline" of correctness. How "activist" the decision is depends on how far it deviates from this baseline.

This definition is attractive in the abstract, but as Judge O'Scannlain notes, "Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete definition." There is rarely smoking gun evidence of an ulterior motive, and it can be exceedingly difficult to "establish a non-controversial benchmark by which to evaluate how far from the 'correct' decision the supposedly activist judge has strayed."

Kmiec does say that this particular definition has the most potential for giving coherent meaning to the phrase, but O'Scannlain is correct: because it's so difficult to ever prove an ulterior motive, there's no way to construct a coherent, objective test for determining whether this is going on. And of course, one is always going to assume the worst of someone on the opposite side of an issue, which brings us back to our starting point: "judicial activism" means a decision one thinks is wrong or doesn't agree with.

Now let's put that snippet from Kmiec into context by looking at the couple paragraphs preceeding it:

In spite of these early examples, many will find Judge Hutcheson's imprecise and less-than-constructive invocations of the term to be the modern norm. They would agree with Judge Easterbrook's observation that the label of "judicial activism" is often akin to name-calling, a shorthand for "Judges Behaving Badly." They will sympathize with Professor Randy Barnett's view that the term, "while clearly pejorative, is generally empty."

Justice Scalia has voiced a version of this criticism. During oral arguments for Republican Party of Minnesota v. Kelly, he claimed that calling oneself a strict constructionist while criticizing others for being judicial activists "doesn't mean anything. It doesn't say whether you're going to adopt the incorporation doctrine, whether you believe in substantive due process. It's totally imprecise. It's just nothing but fluff."

To a point, Justice Scalia is right. Today, a charge of "judicial activism" standing alone means little or nothing because the term has acquired so many distinct and even contradictory meanings. Nevertheless, when explained carefully, the term can be a starting point for meaningful conversation about the judicial craft, an opportunity to ask the subsidiary questions that go beyond the superficial. This Comment is an invitation to do just that.

So, have the ADF done as Kmiec suggested and offered a rigorous, careful explanation of what they mean by "judicial activism"? Not by a long shot. Let's compare the various ways they've used the phrase in just the last few weeks. In this post, Jordan Lorence defined it this way:

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.

All that really means is that any ruling that is not constitutionally correct is "judicial activism". And of course, whether one believes it to be constitutionalyl correct depends entirely on the interpretive standard they apply. So here again, the phrase "judicial activism" just doesn't tell us anything meaningful. It just means "wrong." But then Chris Stovall wrote a post where he actually accused a judge of engaging in "a new form of judicial activism" by writing an op-ed piece opposing gay marriage amendments.

Now here's something interesting. I wrote a critique of that last post and pointed out that if you can and will use the phrase "judicial activism" to describe not a ruling but a mere opinion piece by a judge, then that clearly shows that the phrase is nothing but a kneejerk reaction to any judge saying anything one doesn't like. And guess what? That phrase has now disappeared from the post. They appear to be engaging in the Dembskiesque habit of going back and editing posts without saying anything in order to erase embarrasing gaffes like this. But the fact is that the ADF attorney did use that phrase to describe even a judge offering an opinion about a potential amendment, which cannot possibly be judicial activism, by any definition.

And now Bowman is offering an entirely different definition, when judges make rulings to achieve goals that they want. But of course, one can easily show evidence of "originalist" judges doing the very same thing and that evidence is every bit as convincing. Indeed, one of the defiitions that Kmiec considers is that judicial activism could mean "departure from accepted interpretive methodology." That, of course, begs the question "accepted by whom." A far more meaningful definition would be departure from one's own stated interpretive methodology, and on that count it is Scalia who is easily shown to have engaged in that form of judicial activism in the Raich case and in Gonzales v Oregon (in both cases, he ignores originalism completely in interpreting the interstate commerce clause).

And of course, the ADF has used the phrase to mean other things as well. In one of Lorence's earlier articles on the subject he said:

"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 the ADF does use that phrase to mean precisely that, and they do so often. In this news alert, for example, they proclaim that "Judicial Activism Strikes Again" and argue that a ruling was an example of "an out-of-control judiciary that has no regard for the will of the people." So there they are defining judicial activism as judges striking down laws approved by the people (but of course, they had no problem with judges striking down the medical marijuana initiative in California and the assisted suicide law in Oregon, both of which passed by popular referendum).

ADF president Alan Sears has also defined it that way. In a STACLU interview with Sears, they asked him, "What are your thoughts on judicial activism in America today?" His answer:

In his biography by Peggy Lamson, Roger Baldwin said: "I placed my faith in the courts..." What he meant by that was that he knew the ACLU could not achieve its aims through state and federal legislatures or by taking their case to the people. He knew that the courts would be the most useful method of imposing the ACLU's agenda on the people. The outgrowth of that strategy is the judicial activism we see today, where the ACLU and its allies are using the courts to deny the expressed will of the people and to impose new laws via judicial fiat.

And then he went further and added yet another definition:

ADF believes that judges should interpret the Constitution as written and consistent with its original meaning. It is not an "evolving document" with emanations from penumbras as judicial activists' state.

This is another common sense in which the phrase is used, they say that anytime a court recognizes a right not explicitly stated in the Constitution but based instead on broad principles stated there, the court is engaging in "judicial activism". But as Glenn Reynolds has shown, penumbral reasoning is not only common in judicial interpretation, it is a necessity; further, that conservatives engage in it just as much as liberals do.

There are lots of cases based on penumbral reasoning that conservatives agree with completely, and many rights recognized by the courts based on such reasoning that they would never question and in fact support strongly. For instance, the right to send one's children to a private school. There is no such right mentioned anywhere in the Constitution, yet find a conservative who objects to the penumbral reasoning in Pierce v Society of Sisters. You will find none (nor should you, it's a solid decision). But it uses precisely the sort of reasoning they claim to object to in cases like Griswold.

So the fact is, they only object to penumbral reasoning when they don't like the outcome. And that's the problem with all definitions of "judicial activism". They can't be applied consistently or coherently. There will inevitably be decisions that fit their definitions that they agree with and refuse to call activist. That's why, despite much effort, none of the ADF attorneys will answer my simple question: was Loving v Virginia an activist decision? By all of the various definitions they have offered, it must be - the court overturned the "will of the people" without regard for the original meaning of the equal protection clause (which the legislature had made very clear could not be applied to laws against miscegenation).

If any decision fits their criteria for "judicial activism", it's Loving. Yet none of them will say that, they simply ignore the question and pretend it was never asked. Why? Because no one in their right mind would agree that Loving was wrongly decided. I've left multiple comments asking several ADF attorneys to answer that question and they've ignored it completely. At least once, one of them came and responded to one of my posts that included mention of that question and why they won't answer it, and he still didn't answer it. There's a reason for that.

All of this brings me back to my initial point: the ADF, like all conservative groups who throw this phrase around, simply doesn't have a coherent and consistent definition for it. They quote Kmiec out of context saying that, when carefully defined and explained, the phrase can be meaningful, but the fact that they offer multiple definitions for it, and only then apply those definitions to some cases but not to others, shows that they don't have a careful or even minimally coherent standard to determine what is and isn't "judicial activism". Because all it really means is "decisions we don't agree with." That's why it's an empty catchphrase, because by itself it adds absolutely nothing to the discussion. If a decision is wrong, say why it's wrong; calling it "judicial activism" doesn't tell you why it's wrong, it just tells you that they think it's wrong.