Bench Memos

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More on Judicial Activism


Matt Franck would not call it “judicial activism” when a judge upholds a law that is, in truth, unconstitutional. Matt agrees that this reluctant judge would be wrong. He says we could call his judgment “wrongheaded judicial restraint,” or judicial “passivism.” But “judicial activism”–no. Never.

After further desultory remarks, Matt says it is time for him to “duck and cover.”

Of course, there is little point in arguing about definitions as such. One of the privileges of authorship is the sovereignty of stipulation: You get to settle what terms mean, as you use them. If Matt wants a narrower definition of “judicial activism” than we use, that is fine by us. If Matt wants to describe a decision we all agree is wrong by some other name, that is fine, too. The most important thing is that we agree the decision is wrong.

But not the only important thing. (Here is where Matt may want to duck.) Matt may stipulate as he wishes and still communicate clearly. (Knowing Matt’s work, undoubtedly he will.) But it will require of him extra care and precision because we think that Matt’s way of defining things is not perspicuous. We think it is better–more transparent, more effective–to define things as we did in our last post: When a judge adopts as a rule of decision a norm that is not found in the constitutional text, its logic, or history or structure, then he’s acting like a legislator. He is resolving the case on the basis of extra-constitutional sources. He is a “judicial activist,” whether he strikes down the challenged law or upholds it.

Judicial decisions involving the Constitution can be wrong in many ways that no one would call “activist.” A solid originalist may be wrong as to the ratifiers’ understanding of the provision at issue, and mistakenly attribute to them a principle which they, in fact, did not ratify. Or he may be mistaken about the logical inferences following from the principle he applies, even if he understands the principle correctly. Or the solid originalist may mistakenly characterize some fact, or congeries of facts, such as whether Wicca is really a “religion” for purposes of the First Amendment. There is plenty of room here for error, error that leads the solid originalist to invalidate what he should uphold, or to uphold what he should invalidate.

None of these errors involves “judicial activism” as we use the term. It is true that the first kind of honest mistake may involve, objectively speaking, the judge’s adopting a rule of decision which is not really traceable to the text, logic, history, or structure of the Constitution. But it makes no sense to brand this mistake the work of an “activist.” Judicial activism necessarily involves, we submit, some more or less conscious choice to substitute one’s judgment for traditional source material, in order to “update” the Constitution, to avoid an allegedly benighted result, or for another of the many reasons catalogued in the opinions of, for example, William Brennan.

All too often Brennan substituted his own views of what justice required for those of the American people, as solemnly embodied in legislation or in the Constitution, or both. When he did so, he was an activist judge, whether he upheld or invalidated the law or government practice at issue. Whatever else may be wrong with a court’s decision–and Robert, Rick, and Matt all point to useful distinctions among decisions of various sorts–a judge who relies upon extra-constitutional sources is an activist. Full stop.

We think defining “activism” according to the illicit (extra-constitutional) source of the deciding rule–and without regard for results–leads to more effective communication about the phenomena at hand. We think it makes the most sense of common usage of the term.

One consideration here has not been mentioned so far by Matt or his respondents: Every litigant in an American court–state, local, federal–is entitled to have only constitutionally valid rules applied to him. No litigant should have to bear the force of an unconstitutional law. Unconstitutional “laws” are null, void. They are not really laws at all. A judge who applies such a law anyway–a judge who upholds the unconstitutional law–is, more or less wittingly, an accomplice to oppression.

Matt agrees that this is wrong. We would not agree to call it “passivism”
or misguided “restraint.” We think it is more apt to call it “activism.”


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