What Is 'Judicial Activism'? - WSJ.com

What Is 'Judicial Activism'?
A shopworn phrase that has outlived its usefulness.

By JAMES TARANTO

"Now that two different federal courts have declared ObamaCare unconstitutional, the administration's answer is to call the courts guilty of 'judicial activism,' " writes the great conservative economist and columnist Thomas Sowell:

"Judicial activism" is a term coined years ago by critics of judges who make rulings based on their own beliefs and preferences, rather than on the law as written. It is not a very complicated notion, but political rhetoric can confuse and distort anything.

In recent years, a brand-new definition of "judicial activism" has been created by the political left, so that they can turn the tables on critics of judicial activism.

The new definition of "judicial activism" defines it as declaring laws unconstitutional.

It is a simpler, easily quantifiable definition. You don't need to ask whether Congress exceeded its authority under the Constitution. That key question can be sidestepped by simply calling the judge a "judicial activist."

The term "judicial activism" once was rich in meaning. Keenan Kmiec, in a 2004 California Law Review article, describes its earliest known use:

Arthur Schlesinger Jr. introduced the term "judicial activism" to the public in a Fortune magazine article in January 1947. Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutlege as the "Judicial Activists" and Justices Frankfurter, Jackson, and Burton as the "Champions of Self Restraint." Justice Reed and Chief Justice Vinson comprised a middle group. . . .

Schlesinger's Judicial Activists believe that law and politics are inseparable. They see judicial decisions as "result-oriented," because no result is foreordained. They adopt the famous Learned Hand dictum that "the words a judge must construe are 'empty vessels into which he can pour nearly anything he will.' " From this perspective, the Frankfurter-Jackson ideal of judicial restraint begins to look like abdication of responsibility; "deference" to the legal status quo becomes a decision to favor the interests positioned to benefit from that status quo. According to the Judicial Activists, Schlesinger writes, "The Court cannot escape politics: therefore, let it use its political power for wholesome social purposes." Judicial self-restraint is "at best a mirage."

"While he sympathizes with the Black-Douglas wing of the Court," Kmiec writes, Schlesinger in 1947 came down on the side of judicial restraint except in civil liberties cases, defined as those involving "fundamental rights of political agitation."
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Early on, Kmiec notes, "judicial activist" was often used as a term of approbation rather than opprobrium. One scholar praised Justice Frank Murphy, writing that his "votes in civil rights cases reflect not only his objectivity and independence as a judge but also his position as perhaps the outstanding judicial activist on the Court."

By today's standards, those words seem very odd. A strong political consensus has formed in favor of "judicial restraint" and against "judicial activism." Generally only critics of "liberal" decisions like Roe v. Wade and Lawrence v. Texas , which established theretofore unknown constitutional rights, describe them as exercises in judicial activism. As Sowell notes, critics of "conservative" decisions like U.S. v. Lopez , establishing limits on the government's constitutional powers, also level charges of judicial activism.

Supporters of both kinds of decision either deny or ignore the "activism" charge. And while the pejorative use of "judicial activism" has been mostly a trope of the political right--with the left, as Sowell suggests, sort of shlepping behind--one might say we're all Champions of Self Restraint now. Hence the claims that striking down ObamaCare constitutes "judicial activism." Hence, too, Sonia Sotomayor's and Elena Kagan's reassurances to senators during their confirmation hearings that they understood the job of a Supreme Court justice as being limited to interpreting the law, not imposing their own values on society.

In contrast with Sowell, who argues that the left has twisted the definition of "judicial activism," Kmiec maintains the definition is fluid, and offers five different definitions: "striking down arguably constitutional actions of other branches," "ignoring precedent," "judicial legislation," "departures from accepted interpretive methodology," and "results-oriented judging."

Kmiec quotes Justice Antonin Scalia, who thinks the term "judicial activism" is meaningless:

During oral arguments for Republican Party of Minnesota v. Kelly, he claimed that calling oneself a strict constructionist while criticizing others for being judicial activists "doesn't mean anything. It doesn't say whether you're going to adopt the incorporation doctrine, whether you believe in substantive due process. It's totally imprecise. It's just nothing but fluff."

Kmiec disagrees: "When explained carefully, the term can be a starting point for meaningful conversation about the judicial craft." That may be, and Kmiec's interesting article is a case in point. But when it comes to "judicial activism" as a term of political rhetoric, surely Scalia is right. "Judicial activism" is a shopworn phrase that has outlived its political usefulness.

Think about it: What do ObamaCare defenders hope to accomplish by disparaging adverse rulings as "judicial activism"? It seems ludicrous to believe that such talk will win over the Supreme Court. Conventional wisdom has it that Justice Anthony Kennedy is the crucial vote in this case. How likely is it that Kennedy--who has frequently voted with the majority in the cases that both conservatives and liberals disparage as "judicial activism"--would vote to uphold ObamaCare for fear of being labeled an activist?

Or maybe this rhetoric is meant for public consumption. Here, too, it seems unlikely to change minds. In his 1947 article, Schlesinger argued against judicial activism on the ground that decisions not involving "fundamental rights" ought to "be entrusted as completely as possible to institutions directly responsible to popular control," meaning the political branches.

In the case of ObamaCare, however, Congress and the president acted heedless of popular opinion, passing a law that was, and remains, widely hated. The process by which ObamaCare passed was democratic in form, but in substance the legislation is a gross imposition on an unwilling populace. If the Supreme Court strikes down ObamaCare, it will be more in line with popular opinion than the political branches were when they approved it. If the Obama administration responds by carping about "judicial activism," the public may come to love judicial activism.

And Look How Well That's Working Out

* "In this regard, the health care law is little different from Social Security. The [high] court unanimously recognized in 1982 that it would be 'difficult, if not impossible' to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress's power to establish."--Laurence Tribe, New York Times, Feb. 8
* "Social Security's finances are getting worse as the economy struggles to recover and millions of baby boomers stand at the brink of retirement. New congressional projections show Social Security running deficits every year until its trust funds are eventually drained in about 2037."--Associated Press, Jan. 27