Bench Memos

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My Defense of “Judicial Activism”


The term, that is, not the practice.  Here’s my latest post in the Federalist Society’s ongoing online debate on the Court’s latest term: 

I’d like to dispute Mark Tushnet’s claim that “judicial activism” and “judicial restraint” aren’t — and, as I understand him, can’t be — helpful terms. 

Mark’s starting point is his proposition that the terms “judicial activism” and “judicial restraint” “are almost entirely parasitic on one’s views about what the Constitution properly interpreted really means.”  I propose two friendly amendments to his proposition.  First, the terms depend not just “on one’s views about what the Constitution properly interpreted really means” but also on one’s views about any additional principles that should guide judges (as opposed to other constitutional interpreters) as they exercise their particular role.  (I think that Tushnet’s third paragraph indicates his agreement with this amendment.)  Second, I’d change the odd pejorative “parasitic” to “dependent”.   

Whether from Mark’s original proposition or my modified one, it doesn’t follow, though, that the terms “judicial activism” and “judicial restraint” are unhelpful.  The term “judicial activism”, as I believe it should be used,* identifies one category of judicial error in interpreting the Constitution:  the wrongful overriding of democratic enactments (often through the invention of supposed constitutional rights).  That category of judicial error is distinct from a second category, which I call “judicial passivism” — the wrongful failure to enforce constitutional rights.   

In distinguishing these two categories, I don’t mean to imply that one category of error is worse than the other.  The two categories are, however, qualitatively different in several respects.  One difference is that errors of judicial passivism are correctible through the ordinary political processes:  statutes can afford the protections that the Court wrongly denies.  By contrast, errors of judicial activism usurp the political processes and are correctible only by extraordinary means:  the Court’s reversal of its erroneous precedent or constitutional amendment. 

Judicial interpretation of the Constitution is not a mere intellectual game, and the term “judicial activism” succinctly captures the Court’s wrongful invasion of the realm of representative government and the injury that invasion inflicts on the powers of American citizens.  More particularly, the term “liberal judicial activism” draws its potency from the Court’s repeated entrenchment since the 1960s of the policy preferences of the Left in the guise of constitutional rights.  To paraphrase the old Smith Barney commercial, the term “liberal judicial activism” has acquired its stigma the old-fashioned way:  it’s earned it.  Given the ongoing threat that liberal judicial activists pose (both in clinging to ill-gotten gains on matters like abortion and in new or foreseeable incursions like the invention of a constitutional right to same-sex marriage, the conferral of constitutional rights on foreign terrorists, and the invention of a constitutional right to clone), the vigorous use of the term “liberal judicial activism” is a public service. 

* I agree that the term “judicial activism” is unhelpful if it is used merely to signal one’s disagreement with a ruling or if it is neutered to refer to every exercise of judicial review (whether right or wrong) that results in the invalidation of a statute or regulation.

Tags: Whelan


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