Judicial Activism Revisited
With the reconvening of the Senate Judiciary Committee (which yesterday approved the nominations of Michael McConnell and Dennis Shedd for appellate judgeships), and with the publication of University of Chicago law professor Cass Sunstein's op-ed in the New York Times last Saturday, the blawgs have been full of discussion about the meaning of judicial activism this week. I took part myself on Tuesday.
Fritz Schranck (whose blog I've somehow missed until now—onto the blogroll he goes) argues that this is all a fruitless exercise. He writes:
The term is nearly bereft of meaning by itself. Instead, a careful identification of the user's own political perspective is first required before any understanding can be poured into the phrase.
At one level, he's certainly correct. There is an unmistakable tendency, especially in the popular media, to use "judicial activism" as a label with which to tar the judicial reaching of results of which the speaker or writer does not approve. Thus, conservatives happily attacked constitutional decisions of the 1960s and '70s as judicial activism, and liberals now use the same term to describe decisions cutting back on the scope of those rights, or cutting back on Congress's ability to legislate. As thus used, calling someone a judicial activist essentially means no more than calling that person a bad judge, with "badness" defined by the ideological preferences of the speaker or writer.
In this sense, "judicial activism" serves essentially the same role that "out of the mainstream" does—it says as much (or more) about the declarant as it does about the subject. The law professors' letter in opposition to the McConnell nomination (described by Howard Bashman here), for example, repeatedly describes Prof. McConnell as "outside the legal mainstream." That's an assertion that probably would have been so had he held his current positions thirty years ago. As one of my colleagues pointed out while the letter was circulating for signatures, though, it's hard to describe as "outside the mainstream" views that appear to be shared by at least two, and sometimes more, of the current members of the United States Supreme Court. The letter thus seems like just another example of a common phenomenon, one that is certainly well evident in the blogosphere: people assume that their own views are both correct and widely shared, and they thus dismiss those with different views as fringe extremists.
Stuart Buck seeks to add substance to the notion of judicial activism, citing University of North Carolina law professor William P. Marshall's description of seven modes of judicial activism. By thinking about the different ways in which a court can be considered activist, Stuart argues, the Rehnquist Court can be seen as just as activist as the Warren Court in some ways while being quite conservative (in the non-political sense of the word) in other ways.
That's an interesting and important observation. And yet to a certain extent it begs a question, as does Prof. Marshall's description of seven forms of activism. As Sam Heldman observes in a comment at Stuart's site, most of the forms of activism identified by Prof. Marshall have mirror images that could also be defined as activist. One of Prof. Marshall's forms of activism, for example, is "remedial activism":
the use of judical power to impose affirmative ongoing affirmative obligations on the other branches of government or to take governmental institutions under ongoing judicial supervision as a part of a judicially imposed remedy.
School desegregation would be an example of this form of activism, as would some instances of prison reform. And by this standard, the Supreme Court's recent refusal to permit remedies against state governmental entities for violations of the federal anti-employment discrimination statutes certainly would not be considered activist. But, as Sam suggests, it is easy to craft a mirror-image form of activism, which Sam labels "refusal-to-remedy activism": the refusal to extend remedies (in this case, legislatively-created remedies) to state entities. By this standard, the Court's recent 11th Amendment jurisprudence would be seen as profoundly activist. Again, it all goes back to starting points.
This may be why Howard Bashman offered such a narrow definition of judicial activism last weekend. Howard defined judicial activism as "the actions of judges who do whatever is necessary to rule as they personally prefer, regardless of what existing law provides." That kind of activism, everyone ought to be able to agree, is undesirable. It is, however, also fairly rare (although charges of this form of activism have been leveled against Texas Supreme Court Justice (and Fifth Circuit nominee) Priscilla Owen, charges that I am not at this point in a position to evaluate). And it is certainly difficult to evaluate in nominees who have not already spent time on the bench.
I do still intend to return to one point from Howard's post, and to suggest a number of ways in which appellate judges can significantly shape the direction of the law without engaging in outright rejection of existing law. But with regard to charges of judicial activism, I think Sam is probably right: we need fewer shrill adjectives like "activist," and more reasoned discussion about the merits of different legal arguments.
* In making this point, Sam echoes legal realist scholar Karl Llewellyn, either consciously or unconsciously. Prof. Llewellyn wrote, in a still-well-regarded 1950 article in the Vanderbilt Law Review, that the canons of statutory interpretation did not provide neutral adjudicative tools, because for each canon pointing in one direction there existed an equal and opposing canon leading to an opposite conclusion. Some of the details of Prof. Llewellyn's article have been subject to appropriate criticism (by Justice Scalia, among others), on the ground that some of the canons that he used in his matched pairings were not in fact generally recognized as legitimate canons of statutory interpretation. The central insight that the canons are not value-neutral tools that lead to determinate results, however, retains much of its vitality.