In a sloppy essay-length blog post, Linda Greenhouse contends that “[c]onservatives are [now] lining up not to denounce judicial activism, but to embrace it.” The primary piece of evidence that she offers is the Institute for Justice’s (in my view, badly misguided) advocacy of “judicial engagement.” The embrace of that term, she hopes, might at least have the incidental benefit of “sending the charge of ‘judicial activism’ into political retirement.”
Let me try to sort out Greenhouse’s confusion:
1. On the basic approach to the judicial role in interpreting the Constitution, there has been a decades-long divide on the right between libertarians and advocates of judicial restraint. The Institute for Justice has been firmly planted on the libertarian side of that divide, so it is hardly meaningful to cite IJ’s support of “judicial engagement” as evidence of a broader transformation in how “conservatives” regard judicial activism. Nor is it fair to suggest that IJ has been inconsistent.
If conservatives generally have embraced IJ’s endorsement of “judicial engagement,” I’ve somehow missed that development.
2. Greenhouse deflects serious thinking about “judicial activism” by contending that the term “is a protean concept that changes with the times.” Greenhouse is certainly correct that the term is often used sloppily—for example, merely to disparage decisions that, whether right or wrong, produce unwelcome results. But every term of political discourse is subject to misuse. The relevant question is whether the term “judicial activism” is capable of being used well—and, as I’ve argued and, I hope, demonstrated by my own use of the term—the answer to that question is clearly yes.
3. Those of us who use the term “judicial activism” to condemn the wrongful judicial invalidation of democratic enactments are not somehow foreclosed from criticizing courts when they err in the opposite direction—what I call “judicial passivism”—by failing to enforce rights and limits that are in the Constitution. Indeed, these errors often have a common source: Given how “living Constitution” rhetoric invites judges to substitute their own policy preferences for the Constitution, it is no surprise that some of the very judges who are most inclined to invent rights that aren’t in the Constitution are also disposed to ignore those that are in it.
To be sure, the relative emphasis that one places on the dual evils of judicial activism and judicial passivism will vary depending on one’s perception of the relative threats they pose, and I wouldn’t quarrel with an observation that many conservatives have recently elevated their concerns about judicial passivism. A critic may, moreover, fairly dispute whether they have been right to do so—whether, that is, they have been consistent in drawing the line between proper judicial restraint and improper judicial passivism. But to contend, as I understand Greenhouse to do, that those who criticize errors of judicial activism can’t also criticize errors of judicial passivism is incoherent.
4. Those like Greenhouse who embrace the “living Constitution” and its lack of any real constraints on the judicial role have ample reason to dislike the term “judicial activism,” for the term succinctly captures, and thus helps to expose, the judicial usurpation of the realm of representative government. That’s all the more reason for conservatives to continue to use the term properly and to make sure that it continues to carry the stigma that it has earned.