Why I Dislike “Judicial Activism”
Recent deployments of the phrase “judicial activism” on J’s Blog – regarding the Sotomayor nomination – reminded me of how much I dislike that phrase. Although I was once prone to employing said phrase myself, reading this post on Lawrence Solum’s Legal Theory Blog, set me straight. As Solum notes (by way of dissecting both “judicial activism” and “strict construction”):
One can define judicial activism in a way that doesn’t boil down to “wrong,” but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, “judicial activism” is not a useful term for constitutional theorists.
From where I stand, the criticism of “judicial activism” tends to imply one of two things:
A. Criticism of a particular court decision, because the critic opposes the institution of judicial review, as currently constituted; or
B. Criticism of a particular court decision, from a critic who accepts the legitimacy of judicial review, but who nevertheless disagrees with the reasoning underlying said decision, and/or the outcome thereof.
IMHO, the only ones who ought to be crying “judicial activism” are those in category A. My SWAG is that there aren’t very many of those.
As for people in category B: I don’t find cries of “judicial activism” from such people terribly impressive. Judicial review necessarily involves substituting the, ah, judgment of judges for that of “the people” (as possibly expressed via their legislators). If one doesn’t find judicial review problematic per se, then complaints about “judicial activism” strike me as being merely a stalking horse for expressing one’s underlying disagreement about a particular judicial decision.
Of course, “I don’t like X” isn’t a terribly persuasive argument. One can, of course, critique judicial decision-making as being incompatible with various methodologies – e.g., textualism, living constitutionalism, originalism, incompatibility with natural law – but this involves doing actual work, and not simply raising what Epstein rightly terms ” the tattered flags of judicial activism and strict construction”.
Aside: Keenan Kmiec attempts to rehabilitate “judicial activism” as a meaningful term, but I’m not sure his discussion really conflicts with what I mentioned above. In Kmiec’s view, “judicial activism” can be defined in five ways: “(1) invalidation of the arguably constitutional actions of other branches, (2) failure to adhere to precedent, (3) judicial ‘legislation,’ (4) departures from accepted interpretive methodology, and (5) result-oriented judging.” However, even if defined as being one of Kmiec’s five alternatives, “judicial activism” still basically amounts to an accusation of “bad judging” or “judicial decisions I don’t like”, and as such, still begs the question of why a given decision is objectionable.