Judicial activism has become the #1 pejorative term for debates over judicial nominations. The ideal, supposedly, is cast in the famous words of Chief Justice Roberts before Congress — the non-activist judge just “calls balls and strikes” and avoids imposing his own views. Of course, this is impossible. No judge — no human being can approach either a particular case or a lifetime of cases without being influenced by preconceptions, principles, and biases. The scope of the law — especially in the hard cases involving conflicts between legitimate principles that demand Supreme Court review — cannot be defined as a physical strike zone.
But the “everybody does it” rationale conflates too much, concealing a critical distinction and perpetuating a misunderstanding of what the “judicial restraint” alternative actually is. The confusion is important insofar as it leads to charges of hypocrisy against advocates of judicial restraint when, as in cases like Citizens United v. FEC, they seek to overturn earlier precedent. The accusation is simple — the advocates of judicial restraint have engaged in activism in endorsing a decision that is friendly towards their supposed political views but nonetheless overturns existing precedent.
The accusation is misguided because it misses where the reference point of the activism/restraint difference actually lies. Charges of hypocrisy against advocates of judicial restraint assume that its defining principle is stare decisis — the idea that previous decisions should be left alone. When precedent is thus assumed to be the reference point, any overturning of any prior decision for any reason is “activism”. The result is a bit of a rigged game; those who embrace judicial restraint are precluded from ever correcting the overreaching of previous generations of judges without being condemned as hypocrites. Meanwhile, critics of judicial restraint have no such rhetorical constraint. Given the pejorative nature of the “judicial activism” label, this reference point leads to absurd results. For example, overturning Dred Scott would be an example of “judicial activism” by definition. Few of any ideology would willingly make such an accusation, of course. The definition therefore needs to be reexamined, lest we endorse a standard that allows the law to march only in one direction.
A better reference point would be based on an inquiry of the underlying legal principle that guides the movement for “judicial restraint”. Advocates of judicial restraint (and they exist in progressive as well as conservative flavors) are generally driven by an originalist and/or textualist approach towards the Constitution. They generally seek to enshrine the “original intent” (again, there are various flavors of this) of the Constitutional text, protecting it against the impulse to reinterpret or extend it by reference to the judge’s own values or his/her perception of contemporary society’s values. Changes in the Constitutional text, argue advocates of restraint, should be done by amendment, not by judicial fiat. Seen this way, decisions like Citizens United are not “activist”, but rather are merely corrections of prior “activist” decisions.[1]
Fault for this confusion and failure of definition does not lie solely with critics of judicial restraint, however. Political conservatives have broadly embraced the ideal of judicial restraint (beginning with a powerful conservative critique of the overreaching of the Warren Court era) and have along the way embraced the idea that this precludes judges ever overturning prior precedent. For example, many social conservatives condemned as “judicial activism” the Court’s decision in Lawrence v. Texas, which overturned the Court’s previous endorsement of anti-gay state laws in Bowers v. Hardwick. Similarly, many conservatives condemned as “judicial activism” the Court’s decision in Texas v. Johnson, striking down previous decisions that had endorsed laws banning the burning the U.S. flag. But Lawrence is grounded on quite plausible notions that the original Constitutional text does not empower the government to regulate individual sexual behavior by consenting adults. And Texas v. Johnson is fundamentally a fairly mundane endorsement of the idea that the First Amendment does not allow the government to prohibit speech just because it is offensive to some in the audience.
Notwithstanding that the error is made on both right and left, however, the correct distinction between “activism” and “restraint” is important as we move into another (and probably two) confirmation process for the Supreme Court. Just because a judge reverses a previous decision doesn’t make them “activist” (or hypocritical). What matters is WHY they reversed it.
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[1] NOTE: This “non-activist” assessment of Citizens United relates to the substance of the decision, based in Constitutional issues of freedom of speech and freedom of association. There is nonetheless a very valid argument that Citizens United was procedurally activist in the way the majority of the Court chose on its own initiative to alter the question presented on appeal so as to create room for them to make a much more sweeping decision. This procedural matter is not, however, the axis of primary criticism by opponents of the Citizens United decision.
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