It may be foolhardy of me to take on the tag team of Robert George and Gerry Bradley, but I can only go halfway with their account of what constitutes “judicial activism.” I have elsewhere defined it simply–perhaps they would say too simply–as the “energetic extension of judicial power without legal or constitutional warrant.” Hence it would never–I’ll repeat that, never–be “judicial activism” for a court to refrain from striking down a statute as unconstitutional. If the law is actually unconstitutional, and it is within the proper scope of federal judicial power to say so with conclusive effect, then we would say that not striking down the law is wrong–that it represents a wrongheaded application of judicial restraint–but how could we ever say that the non-use of judicial power is “judicial activism”?
But this is just what George and Bradley do say, citing a judge “sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment” as one who has committed judicial activism. Let us assume that campaign finance laws violate the First Amendment, and that it is the business of the Supreme Court to correct the Congress in these matters. I assume neither of these things, but let’s say so. We could then slam the noninterventionism of the judge who likes these sorts of laws for, say, unwarranted judicial “passivism,” but hardly “judicial activism.”
The first thing we want to know about any constitutional decision is, was it rightly decided? The second is, was it reasoned rightly? (Sometimes you get the first without the second, as in the main opinion in Bush v. Gore.) But when we see a wrongly decided case, or a rightly decided case reasoned badly, then we still don’t necessarily see “judicial activism,” unless the wrongly decided case or badly reasoned opinion resulted in the unwarranted intervention of judicial power to prevent democratic decision-making.
Another way to put this is that our judgment of what judges do should not be binary–that one side or the other in every divided constitutional decision is being “activist,” which is implied by the George-Bradley argument. Sometimes neither side will be activist, if one side wishes properly to strike down a law and the other side improperly wishes not to. But whenever that happens, and a law is wrongly upheld, there is still democratic redress available for those who believe the Constitution was violated. It’s done by winning elections and repealing laws.
Now I’ll really step in it. Every 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.
Now I’ll duck and cover.