Activist Judges?

I’ve never particularly found the use of the term “judicial activist” all that useful because it can mean a lot of thing to a lot of people. But Paul Gewirz and Chad Golder write in today’s New York Times that, when you define “activism” as overturning federal laws, then the liberals on the Supreme Court are its least activist members. I find that to be a particularly strange definition of activism. Conservatives do not get upset every time a law is struck as unconstitutional. I don’t hear anyone seriously challenging the role of judicial review in modern law (although we all have scratched our heads at times about the proper role of the Courts). Indeed, there have been many a decision of recent years that conservatives were upset that a law was NOT struck down. Take, for instance, the McConnell decision on campaign finance reform (mea culpa — I helped defend the law in the lower courts in my capacity as a DoJ lawyer). There, conservatives were upset not because an activist court struck down a law, but because the Court strayed from the text of the First Amendment’s guarantee of free speech in the realm of political speech where it’s protections should be the strongest. But where conservatives do get upset is when a Court strikes down federal, state or local laws on the basis of a constitutional provision that does not exist. You can search long and hard for a sodomy clause or an abortion clause in the constitution, but you’ll never find one. Yet the Court has, over the last thirty years, incrementally expanded the scope of the Due Process Clause of the Constitution to protect an intangible (and unknowable) right to privacy. The constitution says very little about privacy, at least in the sense that it has been interpreted by the Court. (The clause simply provides that the state shall not deprive a person of life, liberty or property without due process of law. It is, at best, a guarantee of fair procedures by the government and says nothing of the substance of a federal or state law). In either case, upholding a law that should be held unconstitutional under the text of the constitution or striking down a law that should be upheld, the upshot is the same: a Court has exceeded its role by disregarding the text of the Constitution. So whatever the definition of “activism” is, it is more precise to talk about fidelity to the constitution’s text. Gewirz and Golder’s analysis of who is most activist under their definition does little to advance that discussion.

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