Bench Memos

Re: Justice Ginsburg and “Judicial Activism”

To follow up on Ammon’s excellent post:

In the NYT article, Justice Ginsburg is quoted as saying: “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”  (Emphasis added.) And if wisdom is measured solely in years, then the 80-year-old Ginsburg is the wisest justice. But it’s not, and she’s not.

As I understand Ginsburg’s assertion in context, she is deploying a neutered meaning of the term judicial activism, under which any vote to strike down legislation, whether or not correct, is an exercise of judicial activism. I’m reminded of William F. Buckley’s response to the leftist charge during the Cold War that the CIA and the KGB were engaged in morally equivalent acts of spycraft. As Buckley put it, that’s like “saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.”

The label judicial activism and its opposite, judicial restraint, draw on separation-of-powers concerns about the proper role of the courts in our constitutional system. Their proper uses therefore depend on a sound understanding of what is, and what is not, correct constitutional interpretation (a matter on which, of course, there is plenty of room for debate). To use the term judicial activism in a manner that fails to distinguish between correct and incorrect invalidations of statutes is to abuse the term.  

I’ll add that the decision last term that in my judgment (for reasons I’ve spelled out elsewhere) most deserves condemnation as judicial activism is the ruling (in Windsor v. United States) invalidating the federal Defense of Marriage Act—a ruling for which Ginsburg provided the decisive fifth vote. So, as I discussed several years ago, I can’t take Ginsburg seriously as a proponent of judicial restraint.

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