Bench Memos

Re: Judicial Excuses

“Judicial engagement”? Ah, there’s a catchy term.

Anthony Sanders criticizes in passing what he calls the “false alternative of judicial activism versus judicial restraint.” But no serious advocate of judicial restraint contends that the courts should enforce laws that have been demonstrated to be unconstitutional (or should, as Sanders claims, “abdicate their solemn duty to determine whether a law complies with the Constitution”).

“Judicial activism” and “judicial restraint” are incomplete accounts of judicial vice and virtue, respectively. There’s also, for example, the vice of what I call judicial passivism (and what Sanders calls “judicial abdication”)—the wrongful application of a law that is unconstitutional. Like all terms of political discourse, “judicial activism” and “judicial restraint” are subject to misuse (as Sanders illustrates). But they are not false alternatives. And insofar as they signal separation-of-powers concerns about the proper role of the courts in our constitutional republic, they’re a lot more meaningful than the empty alternative of “judicial engagement” versus “judicial abdication.”

(I offer a more extended defense of the term “judicial activism” here.)


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