The ‘Judicial Activism’ Worm Turns. Again.

The ‘Judicial Activism’ Worm Turns. Again. January 5, 2015

The New York Times has an article about the Republican party increasingly turning to the courts to push their agenda and get laws they don’t like overturned, and the Democrats using the same empty rhetoric against it that the Republicans have long used. It’s all “judicial activism.”

As Republicans prepare to take full control of Congress on Tuesday, the party’s leaders are counting on judges, not their newly elected majority on Capitol Hill, to roll back President Obama’s aggressive second-term agenda and block his executive actions on health care, climate change and immigration.

On health care, Republicans in Washington have sued the president and joined state lawsuits urging the Supreme Court to declare major parts of the Affordable Care Act unconstitutional. On climate change, state attorneys general and coal industry groups are urging federal courts to block the president’s plan to regulate power plants. And on immigration, conservative lawmakers and state officials have demanded that federal judges overturn Mr. Obama’s plan to prevent millions of deportations.

Democrats say the legal moves reflect a convenient turnabout for the Republican Party and a newfound willingness to seek an active role for the judiciary when it benefits conservative policy goals.

“What they cannot win in the legislative body, they now seek and hope to achieve through judicial activism,” said Representative Gerald E. Connolly, Democrat of Virginia. “That is such delicious irony, it makes one’s head spin.”

Ah, but the irony cuts both ways. The term “judicial activism” actually goes back to the 1930s and it was used by liberals to criticize conservatives who were filing lawsuits to stop legislation passed as part of FDR’s New Deal agenda. Then in the 1950s, the two sides exchanged scripts and the Republicans started railing against “judicial activism” and demanding “judicial restraint” while the Democrats praised the Warren court for striking down legislation more often.

This phrase is meaningless tripe and it should be retired forever, from either side.

"I share it. I've learned not to underestimate the Democrats' ability to snatch defeat from ..."

Trump’s Racist Attack on Congresswomen Hurt ..."
"I consider myself an Independent voter but the GOP has been so horrible I'm usually ..."

Trump’s Racist Attack on Congresswomen Hurt ..."
"I suspect the American born non white Latino population is also dropping. At least that ..."

Why We Should Be Encouraging More ..."
"Population growth has been dropping for a while in wealthier, well educated societies. People no ..."

Why We Should Be Encouraging More ..."

Browse Our Archives

Follow Us!

What Are Your Thoughts?leave a comment
  • Alverant

    Don’t you mean “from both sides”?

    Also what happens when a judge ignores the law and makes a decision based on ideology?

  • John Pieret

    the irony cuts both ways

    Yeah, sure … but the Republicans have owned it longer and where it will get truly ironic is when they (and they will) keep praising the courts when they do something they like and railing against court activism when they do something they don’t. Hobby lobby is a right and just use of the courts but if SCOTUS overturns same-sex marriage bans, it will be the worst judicial activism EVER!

  • hoku

    I agree that the term has become meaningless, but what else do you a situation where the court acts with little to no precedent or against precedent to achieve their desired ends? For example the Shelby County v. Holder decision or Bush v. Gore.

  • marcus

    hoku @3 “Judicial asshattery?”

  • rpjohnston

    Ew that’s my rep. In Gerry’s defense he’s usually on the up and up on social/liberal issues (not perfect but pretty good) (and safe enough for me to comfortably vote green).

  • @3:

    I agree that the term has become meaningless, but what else do you [call] a situation where the court acts with little to no precedent or against precedent to achieve their desired ends? For example the Shelby County v. Holder decision or Bush v. Gore.

    How about Judicial Hackavism?

  • scienceavenger

    A term doesn’t become meaningless simply because it is misused. After all, creationists have been misusing “evolution” far longer than the judicially ignorant have been misusing “judicial activism”, yet I don’t see anyoe suggesting we stop using it.

    The flip floppy nature of “judicial activism” is a symptom. The disease is a woefully outdated and poorly written constitution (hello 2nd Amendment), that makes judicial rulings into Rorschach tests of Biblical proportions.

  • latveriandiplomat

    @7: Evolution has a correct, objective definition that serves to identify people who misuse it.

    It’s not clear that judicial activism does. One could try something like “politically motivated decisions that do not follow from the meaning of the law or the Constitution” but there’s a lot there that’s open to interpretation and opinion. I’d welcome a better, alternative definition that doesn’t have that problem.

  • matty1

    If “the meaning of the law or the constitution” is so obvious that everyone can agree a court has not followed it then it is presumably obvious enough the matter should have been settled in the court of first instance, where (I think) questions about constitutional meaning are not generally addressed.

    Maybe using #6 as a starting point we could define judicial activism as “decisions that lack precedent and where it is possible to predict whether someone agrees with the result from their party affiliation.”

    The second part is to distinguish ‘political’ decisions from other reasons a decision might not follow precedent that shouldn’t be called activisit.

  • scienceavenger

    @8 “Evolution” is not so clearly defined as you put it, as the many debates on it testify. The definition you supply for “judicial activism” is just fine, and again, if our laws were better written, there wouldn’t be so much space for interpretation and opinion. Yet space for opinion and interpretation doesn’t render a term meaningless as the terms “music”, “green” and many many others testify. Very little in life is that exact, why demand it of the law?

    Everyone who insists that “judicial activism” = “meaningless tripe” has to answer the following: If a judge stood up and said “I don’t care what the law says, I’m ruling the way I am because I like the result”, what but JA would we call it? Sure, real life situations are harder to pin down, but that’s life. We don’t have perfect competitive markets either, or perfect circles, but no one is claiming that “free market” and “circle” is meaningless tripe.

  • latveriandiplomat


    Well since you dismiss my examples out of hand, I guess we don’t agree. That’s fine.

    Evolution is quite well defined, which as I say, is why the arguments that use deliberate misapprehensions like “why are there still monkeys” are objectively vacuous. Don’t mistake argumentation for valid debate.

    “Music” is less problematic to define that “good music”. I submit that “judicial activism” is more akin to the latter, as in common usage it is largely an opinion about the subjective quality of court decisions rather than an objective criteria. Definitions other than my ad hoc one might not suffer from that problem, I see Ed has a post exploring that possibility in greater detail.

    Lastly, as a quick aside, I don’t think “Free Market” is free from problems either. For example, why do anti-monopoly laws intended to increase competition make a market “less free”? Or do they? Depends on whom you ask.