Bench Memos

No More “This Week”

For various reasons, I’ve decided to recast “This Week in Liberal Judicial Activism” as “This Day in Liberal Judicial Activism”. As the recasting indicates, instead of having one weekly post, I’ll have frequent daily posts.  I’ll also continue to add new material.

After nearly two years of “This Week” entries, I’ll repeat a few points of explanation about this feature:

1.  For rulings on questions of constitutional law, I use the term “liberal judicial activism” to 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 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 use the term “liberal judicial activism” to identify judicial decisions that implausibly construe legal texts to reach liberal policy results.

4.  I will not be 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.

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