Bench Memos

“Judicial Activism” and the Collapse of Distinctions

Is the government’s bailout of the auto industry unconstitutional?  Charles Lane and George Will both relate some interesting arguments that it is, in today’s Washington Post.  But then Will simply confuses matters with this:

Controversy about the judiciary’s proper role is again at a boil because of a Supreme Court vacancy, and conservatives are warning against “judicial activism.” But the Chrysler and GM bailouts and bankruptcies are reasons for conservatives to rethink the usefulness of that phrase and to make some distinctions.

Of course courts should not make policy or invent rights not stipulated or implied by statutes or the Constitution’s text. But courts have no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government, including by popularly elected, and popular, officials. Regarding Chrysler and GM, the executive branch is exercising powers it does not have under any statute or constitutional provision. At moments such as this, deference to the political branches constitutes dereliction of judicial duty.

Will has lately grown fond of the phrase “judicial activism,” but he appears to have forgotten its history.  While it has not always been used pejoratively, it has always meant, more or less (in Will’s own words) “mak[ing] policy or invent[ing] rights not stipulated or implied by statutes or the Constitution’s text.”  No one has ever thought that the judiciary’s “actively defending” various constitutional rights is the same as “activism” so long as the rights are real and the judicial defense of them is constitutionally appropriate.  In short, getting the actual Constitution right, as a matter of text and history, is never activism, whatever the outcome.  “Judicial activism” in the six decades since the expression’s coinage has been the hallmark of the “living  Constitution” approach, the effort to keep the Constitution “in tune with the times.”  The expression may also be used for the judicial over-reaching of earlier eras before the phrase existed, when imaginary historical principles animated the Court’s decisions–such as in Dred Scott or Lochner v. New York–and activism of this sort is not unheard of even today.  But the common thread across species of the genus “judicial activism” is the impossibility of justifying activist decisions by reference to the historic function of the judiciary under the text or traditional understanding of the Constitution.

In short, an “active” judiciary is not necessarily an “activist” one, and Will does his argument no good by blurring the difference.  It’s Will and not other conservatives who needs to rethink the phrase and to remember some distinctions he has collapsed.