I was drafting my last post as Matt posted his, so I did not mean my post on activism to be a direct response to his. That said, I think it is obvious that I disagree with his definition of “judicial activism” as requiring the striking down of a law. I side with Judge Luttig and what I understand to be Robert and Gerry’s position: that is, that activism is fundamentally replacing legal judgment with will. Like any sin, inaction may get you there just as well as action (although here, upholding a law is an “act” as well; inaction might be failing to address the question at all). Judicial restraint does mitigate in favor of certain canons of interpretation which permit avoiding questions (e.g., constitutional avoidance doctrine, which has fallen out of favor). And the presumption in favor of constitutionality of congressionally enacted legislation suggests that in the case of a true “tie” the legislation should be upheld. But if a case is clear, and the law is profoundly unconstitutional, and the issue is plainly and properly before the court, then how can it be said that a judge is meeting his or her constitutional duty by committing the act of upholding the unconstitutional law? Matt’s suggestion that the issue could be politically remedied does not change the fact that a judge who commits the overt act of upholding a clearly unconstitutional law has abrogated his duty. Matt hints at a narrow view of judicial review, but are we to believe that judges are just there to interpret statutes, and not the Constitution? Suffice it to say that this view was tacitly rejected in American courts even before Marbury. To provide but one example, if Congress were to pass a law prohibiting the publication of National Review Online and that scandalous Bench Memos blog, and the issue were to come before a judge who chose to act by upholding the law not because it comported with his view of the First Amendment, but because he really dislikes Jonah, that decision would be one replacing will for legal judgment, and would therefore constitute activism.
But instead of arguing about this more theoretical question, let’s switch to something more practical. At the end of Matt’s last post, he states: “[e]very current member of the Supreme Court is a serial offender against the proper limits on judicial power, and that includes Scalia and Thomas, who are most certainly ‘judicial activists’ when it comes to the commerce power, state sovereign immunity, and a handful of other issues on which they wish to use judicial power more energetically than the Constitution can justify.” I am particularly interested to see where it is that Matt believes that Scalia and Thomas have abused their judicial power in the Commerce Clause context. Inquiring Bench Memos readers (and, I presume, other writers) want to know.