Liberals are already claiming that conservative complaints about “judicial activism” are a sham. These claims will increase and intensify as the Roberts hearings draw near. We think that the liberals’ claim rests upon a mistaken idea of what judicial activism is.
Conservatives do say that they don’t want more “judicial activists” on the bench. President Bush has said so himself. The president also says that his kind of justice is Scalia or Thomas, neither a “judicial activist.” Some liberals say “Phooey!” They say that Scalia and Thomas are activists. Why? Because, they say, Scalia and Thomas have voted to strike down laws more often than their assertedly “activist” liberal colleagues.
We have undertaken no survey of justices and their votes to strike down laws. We do not deny the validity of the numbers advanced by liberal critics of the conservatives’ “no-activists” campaign. On the other hand, we don’t concede the numbers. Our point is about a definition: What counts as “judicial activism”?
Whether a judge is a judicial activist doesn’t depend on what liberals say it depends upon: whether (or how often) a judge votes to overturn laws or to sustain them. It depends on whether he resolves cases (one way or the other) on the basis of extra-constitutional norms, principles, tests, or standards. It is a question of where the rule governing decision comes from. If a judge is striking down laws based on “rights” he has allegedly discovered in “penumbras formed by emanations”or in the “liberty clause” of the Fourteenth Amendment, he’s a judicial activist. He is, without constitutional warrant, substituting his personal moral or political judgments for those of the elected representatives of the people, or of the people themselves. If the judge is sustaining campaign-finance laws that plainly restrict political speech of the sort protected by the First Amendment because, let us suppose, he thinks the laws make the political system “fairer” or “more rational,” he is also practicing judicial activism. He is being guided, not by the Constitution, but by his own predilections.
By contrast, a judge who strikes down unconstitutional campaign-finance laws is not practicing judicial activism. He is giving effect to constitutional guarantees; he is not legislating from the bench. He is not making law, save in the inevitable sense in which judges applying norms supplied by other authoritative sources (the people, the legislature) to the facts always make law–interstitially, incrementally.