Bench Memos

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“Judicial Activism”?


I am inclined to agree with Ed Whelan that there is a useful place for the term “judicial activism” in critical discussions of the Supreme Court.  One reason I say so is that I use the term myself sometimes, and I use it pretty much to identify the same judicial sins that Ed identifies when he uses the term.

I am nonetheless a bit sheepish about the term.  One reason for that is that the redoubtable Mark Tushnet thinks the term is played out.  Another reason is that I am not entirely satisfied with Ed’s account of the term: “wrongful overriding of democratic enactments (often through the invention of supposed constituional rights)”.  And I am not sure that I can do much better.  (Though I try to, below.)

The challenge posed by Tushnet (as I understand it) is to give “judicial activism” an intelligible and independent meaning, so that it does some distinctive critical work.  It won’t do therefore to transfer the weight-bearing load to another evaluative term as, to some extent, Ed may do with “wrongful.”  Was the Court’s decision last week (authored by Scalia) in Giles v. Califonia “activist”?  It struck down a useful California law, one of a type (involving admissible hearsay) quite popular across the country.  I suppose the answer to the “activist” charge depends on whether Scalia was (is) right (and his opinion thus not “wrongful”) about what the founders meant by the Confrontation Clause.  Nor will it do to leave matters at an intuitive level, as if “judicial activism” were like obscenity — about which Potter Stewart famously confessed: I can’t define it “but I know it when I see it.”

I am also not sure how much weight to assign to the “democratic” quality of the “enactment” overruled by a putatively “activist” decision.  Perhaps Ed is quite right about this.  But I do wonder how much it matters if the Court strikes down a state judicial rule or administrative regulation (neither of “democratic” provenance”) on wholly unwarranted grounds — say, where a majority concedes that it is relying upon its own moral judgments not tethered to any constitutional provision.  This seems like “judicial activism” to me. “Activism” is (I think) a quality of the judicial decision itself, at least of its reasoning, and has nothing essential to do with the nature or origins of the enactment at issue.

My tentative (and humble) submission is that “judicial activism” is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation.  If not, you have an “activist” at work.

Or something like that.


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