The Essential Emptiness of ‘Judicial Activism’

The Essential Emptiness of ‘Judicial Activism’ October 24, 2013

This is an edited reposting of something I wrote in 2006 about the concept of judicial activism. It discusses an article by Keenan Kmiec, son of conservative legal scholar Doug Kmiec and a respected scholar in his own right, about the history and meaning of the phrase. His conclusion is much like mine, that it doesn’t have any meaning that is, uh, meaningful (don’t judge me).

At the end, he offers a list of all the various meanings assigned to it, a list that I think demonstrates that it has no coherent, agreed upon meaning and that, more importantly, it depends entirely on a whole host of other ideas upon which reasonable people differ. I’m going to list those meanings here and discuss each of them.

A. Striking Down Arguably Constitutional Actions of Other Branches

There are two senses in which this definition may apply. The first only measures how activist a particular court is over a long period of time relative to other courts in terms of how often if overturns a law. That objective and generic definition may still be useful in the sense that it measures the degree of deference that a given court gives to legislative prerogatives. It may also signify how or whether a court is likely to apply the presumption of constitutionality doctrine (the notion that legislative acts should be presumed to be constitutional unless a great burden of proof is overcome). Historically, this is useful for legal scholarship, but as Kmiec correctly notes, it tells us nothing at all about the validity or propriety of any particular ruling.

The second, perhaps related, sense in which this definition may be used is in the sense that the court should avoid close calls. If there is any doubt as to whether a law is constitutional, if there is any reasonable way to uphold the law, the court should defer to the legislature as the most democratic branch of government. Kmiec notes that this sense, too, can be taken in very different directions:

Sunstein recognizes the need for a more limiting principle and refines his definition to include only the invalidation of statutes that are arguably constitutional. He notes that “the Constitution contains ambiguities,” and “[r]easonable people have opposed campaign finance regulation, gun control, affirmative action and restrictions on advertising. But it is a stretch to think that the Constitution, fairly interpreted, opposes all of these things, too.” Thus, Sunstein’s view is actually close to the definition provided by Professor Lino Graglia: “By judicial activism I mean, quite simply and specifically, the practice by judges of disallowing policy choices by other governmental officials or institutions that the Constitution does not clearly prohibit.” In other words, the Court is engaging in judicial activism when it reaches beyond the clear mandates of the Constitution to restrict the handiwork of the other government branches.

I’ll call this the “tie goes to the house” concept of judicial activism, the idea that the courts should only intervene when the constitutional principle is absolutely clear and nearly universally agreed upon. There are actually more of such instances than one might imagine. A fair number of Supreme Court rulings every term are unanimous, which is the most obvious way of measuring the degree of consensus across the political spectrum on a matter of constitutional interpretation. But such cases rarely involve anything controversial or likely to garner attention beyond those they directly affect.

There are two major problems with this defintion. The first is that it writes a presumption into the constitution that does not appear there, nor is there much support for it historically. I agree with Randy Barnett that a presumption of constitutionality is really the court abdicating its role in our government. And if you look at the Federalist papers, you will find no support for it. In Federalist 78, Hamilton argues that the Constitution establishes a Supreme Court “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” Not contrary to the literally interpreted text, or the expected application of the text, but merely contrary to the tenor, or spirit, of the constitution. Further, he argues that without the court performing such a duty, “all the reservations of particular rights or privileges would amount to nothing.”

The second major problem, as Kmiec notes, is that this definition depends upon one’s theory of interpretation and on how one thinks the constitution ought to be applied in a particular case:

This view of judicial activism has another, more practical flaw: the line between proper judicial review and judicial activism depends on the speaker’s understanding of the Constitution. Recall that Professor Graglia’s definition requires agreement on what the Constitution “does not clearly prohibit.” Thus, this definition of judicial activism depends on the speaker’s view of whether the Constitution has expressly prohibited policy choices in any given area of the law–even relatively unsettled areas such as abortion, affirmative action, and the right to bear arms, to name a few. The subjective quality of this definition means that discussions of this kind of judicial activism will quickly evolve into debates over constitutional meaning.

And thus, this usage of “judicial activism” really just means “bad ruling” or, more subjectively, “a ruling I disagree with.” Calling it “activist” adds nothing to the discussion at all; if the ruling is wrong, then spell out why it’s wrong.

B. Ignoring Precedent

Here Kmiec distinguishes between vertical precedent and horizontal precedent. A lower court ignoring precedent from a higher court (vertical precedent) is clearly an activist court by pretty much anyone’s definition. But that rarely happens. The Supreme Court overturning their own precedents happens more often, but no one would argue that the mere fact that they do so indicates that they are wrong to do so. Lorence pointed to Brown overturning Plessy as a case of overturning bad precedent; I would cite Lawrence overturning Bowers as another good example, but I’m sure he wouldn’t agree with me.

My main problem with this definition is that it assumes a strong version of stare decisis that I simply don’t accept. I agree with Akhil Amar that such a view of precedent requires “excessive deference to past decisions that themselves may have been misinterpretations of the law of the land.” Where prior court rulings are clearly wrong – and some of them are – they should be overturned. And I do not think that the mere fact that a ruling has not been overturned for a long period of time is good reason to preserve it when it is obviously wrong. If I had my way, the court would go as far back as the 1940s and overturn Wickard, for example, and even as far back as the reconstruction period to overturn the Slaughterhouse cases and restore the meaning of the privileges and immunities clause.

C. Judicial Legislation

Judges are labeled judicial activists when they “legislate from the bench.” President George W. Bush has invoked this meaning, saying that he plans “to appoint strict constructionists who would hew closely to the law rather than judicial activists whom he said were prone to ‘legislate from the bench.’ ‘We want people to interpret the law, not try to make law and write law,’ he said.”

The main problem with this definition is that no one ever provides any clear criteria to determine when a judge is interpreting the requirements of the constitution and when they’re “legislating from the bench.” The other problem is that statutory interpretation often requires that judges fill in the details of vague laws. Kmiec quotes Judge Posner to that effect, saying, “Some statutes, indeed, are so general that they merely provide an initial impetus to the creation of frankly judge-made law (as in antitrust)…” Thus, Kmiec argues, “In these circumstances, a technically statutory provision becomes essentially a body of common law.”

The other problem, as I argued previously, is that the very same people who claim to object to “judge made law” tend to be big fans of the English common law, particularly those aspects of it that lend support for criminalizing things they think are immoral, like blasphemy or homosexuality. Judge Roy Moore, for example, loves to cite the common law prohibitions on such things to justify continuing to criminalize them today. But the common law was largely judge-made law (it was also a foreign source of law, ironically).

D. Departures from Accepted Interpretive Methodology

While canons of interpretation have long been criticized as unhelpful or conclusory, the failure to use the “tools” of the trade appropriately–or not at all–can be labeled “judicial activism.” Accusations of this form of judicial activism are common, but divergences of opinion over what constitutes an appropriate interpretative tool make it difficult to distinguish principled but unorthodox methodologies from “activist” interpretation.

I actually think this one comes closest to being an objective and coherent definition for judicial activism, but only if modified slightly. I think one can make a coherent argument that a judge is substituting his preferred outcome for sound interpretation when he departs from his own stated theory of interpretation when the application of that interpretive modality would result in an outcome he doesn’t like. The two most obvious examples of this, and I’ve mentioned them both many times in the past, both come from Justice Scalia (his opinion in Raich, which completely ignores the original meaning of the commerce clause, and his opinion in Edwards, where he points to the legislative history of the bill as a means of upholding it despite having repeatedly argued the irrelevance of legsilative history in statutory interpretation).

E. Result-Oriented Judging

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.

Kmiec points out the obvious problems with this definition:

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.”

The difficulty, of course, is that people are far more likely to presume an ulterior motive by those who disagree with them the most, while giving the benefit of the doubt to those rulings they agree with or those judges they tend to agree with overall. Thus, “judicial activism” merely becomes a placeholder for “I think this ruling is wrong.” And as Kmiec argues in the conclusion of his article, that is the primary weakness of the phrase overall. Without a coherent set of standards that separates activist from non-activist rulings, it merely becomes an epithet that substitutes for making a clear argument against a ruling:

Cases like Miranda serve as reminders that whether a case is “activist” may not explain whether or not it is a good decision, when one’s definition of “good” is based on other criteria. Individual cases can result in favorable consequences or set desirable precedents despite being improper exercises of the judicial function. Thus, one problem with using “judicial activism” as a pejorative, as critics of the Warren Court often do, is that it confuses the issues. Using “activist” as a substitute for “bad” elides important differences between the two labels; it fails to elucidate the specific ways in which a judicial opinion is improper, harmful, or wrong.

Thus, the phrase has merely become shorthand, a catchphrase that means everything or nothing depending on who is using it and why. It’s an empty canvas on which one can paint whatever picture they want, but of course they rarely put brush to canvas at all. It usually stands as a lone epithet, undefined and inconsistently applied, and is used as a substitute for substantive argumentation over the validity of a ruling. It functions as a symbol of wrongness in the same way that terms like “liberal” or “pagan” are used merely as symbols for “Them”. As such, it is primarily an empty placeholder where a substantive argument ought to be.

Unfortunately, liberals have once again begun to use this phrase. President Obama and Justice Ginsburg have criticized the current court for its judicial activism, just as conservatives have used it to criticize previous courts and rulings. I wish people would just stop using it. It means nothing.

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