More on judicial activism

by Kakofonous

I had a few things to add on the heels of Eyck's recent post. One, an article published in the New York Times about a month ago has some excellent data and analysis of the Court's changes in ideology and so-called "activism" over the past 60 years or so. Two, I have to take some issue with Eyck's contention that the concept of judicial activism is meaningless and "hollow." While of course I agree that the term (and thus the idea it represents) has been politicized and therefore oversimplified, I can't agree that the underlying concept is vacuous. It may be naive, however.

In his 2008 book How Judges Think, Richard Posner, an eminent judge and legal thinker, discusses several views of legal decision-making, and finds most to be rather lacking. To a hard-core originalist like Justice Antonin Scalia, who believes a judge's job can be reduced to following rules set by precedent and a pretty iron-clad interpretation of the Constitution, Posner responds that, if this were all a judge were meant to do, he could be replaced by artificial intelligence designed to follow the rules of precedent exactly. Since this would be patently absurd, it seems plain that judges must be "active" at least in some situations. Otherwise, their job is no more complicated than executing an algorithm that a robot might execute better. Originalism is thus neither an adequate explanation of what judges actually do, nor should it be upheld as an ideal of what judges are meant to be doing—there's obviously much more to a judge's job than blindly following precedent. Highly important factors independent from precedent, like the real-world consequences of a law, are and should be integral elements to a judge's decision. Some degree of activism is necessary—it isn't always the corrupting influence on the legal system that so many commentators contend it is.

In light of Posner's criticism, the conservative establishment's general disdain of "judicial activism" (at least in the rather narrow sense I've used above) seems rather weakly grounded. However, setting aside the blatant hypocrisy of deriding judicial activism while the Roberts court is busy making decisions like Citizens United, (which, as Stevens noted in his dissent, was rather flagrantly activist) criticism of judicial activism isn't always in bad faith. It is certainly important that judges don't overstep their boundaries and become full-fledged legislators. We have Congress for that. Yet defining these boundaries, and understanding when and where they should be applied, is a far more complex and intellectually demanding exercise than can be encapsulated in a sound bite. Cries of "judicial activism" simply cheapen the judicial profession and add nothing to the important debate about the role and scope our judiciary should have.