Beginning next week, I will introduce a new feature to Bench Memos, titled “This Week in Liberal Judicial Activism”. As the name indicates, I will highlight for each week incidents of (or other items related to) liberal judicial activism that took place in past years on the days of that week.
Let me offer a few points of explanation of what I mean by the term “liberal judicial activism”:
1. For rulings on questions of constitutional law, I will identify judicial decisions that wrongly override laws or policies that flow from the democratic processes and instead entrench, in the name of the Constitution, liberal policy preferences.
2. I intend to use the term “judicial passivism” for judicial decisions that make the opposite error—that fail to enforce constitutional guarantees. Because the two errors are often related—it’s no surprise that justices and judges who embrace the make-it-up-as-you-go-along approach to inventing rights that aren’t in the Constitution also will ignore rights that are in it—I may occasionally include instances of liberal judicial passivism.
3. For rulings on non-constitutional questions, I will identify judicial decisions that implausibly construe legal texts to reach liberal policy results.
4. I will not be not probing the subjective motivations of judges. To identify a decision as an instance of liberal judicial activism does not necessarily mean that I am alleging that the judges responsible for the decision have indulged, deliberately or otherwise, their own policy preferences, though I certainly believe that often to be the case. It might instead be that they misconceive the judicial role or that they simply err. In terms of the injury done to American citizens’ power of self-governance, the cause of the error is of little interest.
Let me also pass along a request. This undertaking would greatly benefit from readers’ assistance in identifying lesser-known instances of liberal judicial activism from the lower federal courts and from state courts. Cases from these courts will also be useful in compensating for the fact that the most conspicuous cases of liberal judicial activism are disproportionately concentrated in June, the last month of the Supreme Court’s term. So if you have examples to provide about, say, your regional federal court of appeals or your state supreme court (or even from your own specialized area of the law), please send an e-mail to me at ewhelan@eppc.org and include the name and date (month, day, and year) of the decision or event, an online link if possible, and a brief description.