Ramesh Ponnuru on Obamacare and Judicial Activism

by Ed Whelan

On NRO’s home page today is a fine essay by Ramesh Ponnuru from the current issue of National Review. I’ll highlight here Ponnuru’s sound comments on the term “judicial activism” (all of which are consistent with my own defense of the term):

[T]he accusation of judicial activism presupposes a baseline of what constitutes constitutional fidelity. In the paradigmatic case of the term’s usage, a judge is accused of departing from this baseline in order to strike down a law that is compatible with the Constitution but that the judge opposes because it offends his sense of justice or sound public policy.

To call a judicial decision “activist” is to state a conclusion rather than a premise. The word does no analytical work, and nobody seriously thinks it does. That is: The reasoning always moves from “The nullified law was compatible with the Constitution” to “The judge behaved as an activist,” and never the other way around. The phrase “judicial activism” is not therefore meaningless, as many people say; it is simply shorthand. (The same characteristics apply to the word “pro-life,” which few people consider meaningless.)

To deploy the rhetoric of activism without regard to the underlying constitutional merits of the question in dispute makes no sense. If the right understanding of the Constitution requires a judge to set aside a statute, then setting it aside cannot be activism. Establishing that it is activism would require establishing first that the understanding of the Constitution that caused it to be set aside was not right. A mere showing that the law was useful, or well motivated, or wide-ranging in its effects, or passed by large margins, would do nothing to establish that the judge was wrong or activist.