Defining Judicial Activism Down
In addition to the inconsistencies in Adam Cohen’s article, which Adler ably describes below, the big problem is how Cohen defines activism, which seems to occur by Cohen’s definition any time a court strikes down a piece of popularly enacted legislation. Cohen goes a step farther, adopting the cherry-picking approach of Cass Sunstein and others who are attempting to re-cast the recent courts as “activist” by distinguishing the act of striking down federal legislation from state legislation. This allows Cohen and his compatriots to express their disdain for the “activism” of striking down statutes where Congress exceeds its authority on federalism grounds, but gives them carte blanche to applaud decisions striking down state statutes that they find objectionable (i.e., Roe). It also allows them to skew the numbers, by suggesting (as Cohen does) that conservatives have struck down more laws–an argument which falls apart if you count the numerous state laws that got brushed aside by the Warren Court.
I recall an interview with former Judge Luttig when he was still on the bench, in which he called this “striking down a congressionally enacted statute” definition of judicial activism “sophomoric.” As he noted, a judge may actually be acting in an activist fashion by sustaining a law which should be struck down. The point is that the definition matters. Judicial activism once meant imposing your will instead of what the law requires. If Cohen, et al. have their way, then it will simply mean striking down federal laws, which they will use to prove that we are all judicial activists now. By doing so, they seek to take a term which is a pejorative and to turn it into a mere description of the court exercising judicial review (rightly or wrongly) in striking down a statute.