Bench Memos

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More on Identifying Judicial Activism


Robby, Gerry, and others have ably blown out of the water the tiresome equation by some academics and pundits that, because “activism” involves, and is in fact defined by, “strking down laws” (federal laws only, apparently; invalidating state laws regulating abortion doesn’t count); it turns out that “conservative” justices like Justice Thomas are more “activist” than Justice Breyer, etc. (In other words, the Lopez case is activism in action, but Stenberg is not).

Here’s how I tend to think about it: Those cases identified by Professor Sunstein and others as revealing “conservative judicial activism” — Lopez, Morrison, etc. — tend to involve the policing of the Constitution’s structural features, and not judicial evaluation of the wisdom of legislatively ratified moral views or policy preferences. One upshot of this is that “conservative judicial activism” does not end debate, or purport to resolve disputes (i.e., nothing in Lopez purported to ask or answer the question whether gun control is wise or constitutionally permissible policy); decisions like Roe and Casey, on the other end, purport to find and enforce constitutional, conversation-stopping answers to difficult moral and other questions. Indeed, as I’m sure we all remember, one of the Casey joint opinion’s key sections was a scolding announcement to pro-lifers that it was time to be quiet and go home. Lopez simply tells us where the discussion should take place, or who gets to decide; Casey makes the decision, and (purports to) terminate(s) that discussion.


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