In 1989, Justice Antonin Scalia delivered an excellent talk on “Assorted Canards of Contemporary Legal Analysis.” Thirty years later, Judge Amy Coney Barrett, a former clerk of his, has followed in his footsteps, lining up her own canards for a speech in the same lecture series. It has just been published. It is a worthy successor to Scalia’s speech in substance, and wisely does not try to mimic him in style.
I think she is too dismissive, however, of the phrase “judicial activism.” It’s true that merely labeling a judge or judicial decision as “activist” tells us no more than that the labeler disagrees; and it is true as well that the phrase can be used in unconvincing ways, as a way of avoiding making an argument, or both. But both points are true of many other phrases that are not therefore meaningless: Compare, for example, “judicial misconduct.” Such phrases state conclusions rather than premises and do no analytical work in getting from the former to the latter; and that’s how they’re generally used.