What Is “Judicial Activism”?
New York Times columnist Ross Douhat writes today that conservatives are equally complicit with liberals in embracing “judicial activism”. This curious finding, however, is a consequence of persistent vagueness about what constitutes “judicial activism” in the first place. Douhat’s definition is essentially that whenever a judge votes to overturn an act of a legislature, that is “activism”. Using that definition, he finds that the only real difference between liberal and conservative activists is that liberals tend to overturn state laws while conservatives tend to overturn federal laws.
Such a definition conceals more than it reveals. The mere act of overturning the legislature is not as relevant to finding out-of-control judges as an examination of their reasoning is. If the grounds for overturning a law — state or federal, it makes no difference — is tied to the violation of a specific Constitutional text, then no number of such rulings can build a case for “activism”. On the other hand, if the grounds for overturning a law is some nebulous expansion through the infamous “penumbra” of a vaguely-worded snipped from the Constitutional text, then even one such case is sufficient grounds to find “activism” in that the judge is putting much of his or her own personal opinion into the process.
Douhat’s approach exposes one of the most serious flaws in a quantitative approach — simply counting the number of a class of incidents often obscures more than it reveals. Most seriously, it begs the question of whether the definition underlying the construction of the class of data being examined (a qualitative determination that adherents to a purist quantitative approach often overlook in their zeal for a “scientific” approach) is correct and nuanced enough to identify the most important differences between cases. Select the wrong aspects of cases to use to differentiate categories and you wind up with very misleading findings, as Douhat does here.
This is not to say, however, that “activism” is always good or always bad. Rather, each instance is an opportunity for political debate, as the image above shows. The fundamental fact is that the Constitution, like all political documents, contains many passages that actually are vague and require substantial interpretation to implement in practice. Whether the “penumbra” of the Fourth, Fifth, Ninth, and Fourteenth Amendments are sufficient to necessarily imply a sweeping “right to privacy” is a fair debate, but is also a political debate. And whether that “penumbra” approach should also lead to an expansive determination of the Second Amendment’s individual right to own weapons is also a fair debate as well as a political debate. Evaluating judicial nominees requires looking beyond merely blindly counting cases of “activism” to inquire into the specific types, reasons, and justifications for the “activism” that is in fact an intrinsic part of judging. But let’s not try to construct false partisan equivalencies as an excuse to ignore the debate entirely or to try to construct other “objective” criteria that evade the real issues.
This post has been linked for the HOT5 Daily 6/3/2009, at The Unreligious Right
Jason,
Could you provide a larger version of the pictured chart? It is too small for me to read and when blown up it becomes entirely illegible.
Re: the Douthat standard vs case by case debate
I think that both approaches are valuable and neither is as valuable as both.
Judicial activism is a commonly used phrase, but one with no real agreed upon meaning (other than ‘a decision I don’t like’). Finding a concrete definition for judicial activism must be the first step in determining who is and is not an activist (assuming that is a worthwhile goal). Douthat made a stab at it. You clearly disagree with his attempt. The next step would be to put out an alternate definition or to argue that it is not a useful concept*. I have not seen a definition put forward better than Douthat’s but find his definition of little value. Unless a clear and consistent definition can be formulated then the term contributes nothing to reasoned debate.
We are generally better served by looking at individual cases individually and finding a pattern of reasoning. Unfortunately this often ends up in a subjective morass, which leads people to look for more quantitative metrics. I am certainly subject to this as my work requires quantitative metrics and builds in a bias toward things that are more easily quantified to be confirmed or denied.
* Which you seem to be doing.
The discussion is missing the fact that many jurists are intentionally activist by their own philosophy. That’s not an allegation… since the days of the Warren Court and earlier, many jurists have believed that activism is acceptable and defend it. They believe interpretation is always subjective and don’t believe the intent of the writers of a law is paramount, so give themselves a lot of subjective room for judgments and often find things as vague or general that aren’t. If you want a definition, we can start by calling those judges activists.
The idea of a conservative activist is in those jurists claiming that they’re no different than everyone else–that everyone is subjective, they’re just being honest about it.
But just because judges aren’t always right or may be biased doesn’t make them activists. What makes an activist is that he excuses subjective interpretations of law. If a judge is biased but adheres to an ideal of objectivity, he can be convinced he’s wrong through evidence. If a judge thinks everything is subjective, he can’t be convinced he’s wrong.
It’s pretty simple to me; ultimately a judge interpreting law should mean the judge is saying what was already law. That’s implicit in our very concept of the role of the court. So, a judge becomes an activist when he thinks his job is no longer about determining what is already law but applying his own legal standards.
I think a lot of conservative judges today are wrong, but not because they’re activists, but because they have an inflated idea of what the excesses of liberal activists were. Ie; they might think some past judgments are the result of straying from the law when they weren’t. They simply have a overly abstract view of what the law means.
One example where I think this is true is where the current court may rule on issues regarding campaign finance laws. There is a long set of precedents backing up most current campaign finance laws, ultimately backed up by writing by the framers. James Madison, for instance, wrote about how the Congress had a right to pass laws to prevent government from being encroached by ‘wealthy interests’. The basis of current laws is the fact that it is illegal for a representative to receive funds from a corporation, as it a conflict of interest. It’s not a restriction on the speech of the corporation, but on the sitting representative himself. Other laws are in place to deal with the fact that corporations try to funnel their money through other sources in order to get it to the representative.
The attempt to define any of these laws as a restriction on ‘free speech’ is imposing such an abstract, subjective interpretation on the Constitution that I’d be tempted to call it ‘activist’. But hopefully, conservative judges are willing to be objective.
My mistake I only mentioned how the law treats sitting representatives.. but the Constitution also allows the Congress to control and determine the election process.