In considering Thomas Miles and Cass Sunstein's effort to measure "judicial activism" and the criticism it has generated, I am increasing persuaded that it is impossible to define "judicial activism" in a way that is both 1) useful, and 2) not simply a synonym for incorrect decisions. My tentative sense is that any ideologically or politically neutral definition of "activism" is unlikely to be useful in shedding light on the normative debate over what judicial review should be used for. On the other hand, normatively useful definitions of "activism" will tend to coincide with the analyst's definition of "incorrect decision."
It is certainly possible to define judicial activism in a neutral way. For example, Miles and Sunstein define "activism" in the context of judicial review of regulatory agency decisions as any judicial decision to overrule an agency. Similarly, one can define "activism" in the constitutional law field as any judicial decision to invalidate a statute enacted by a legislature. Such definitions of activism are objective, but not very helpful. Most critics of what they call "judicial activism" don't claim that any judicial decision that invalidates an action by the other branches of government is activist. Instead, they condemn such decisions only if they think they exceed the courts' legitimate authority or misinterpret the relevant law. Thus, knowing that Judge X votes to strike down statutes or overrule agencies more often than Judge Y tells us very little that is useful in determining who is more "activist" in any sense relevant to normative debates about judicial power.
Moreover, both liberal and conservative critics of "activism" often denounce as activist not only decisions that strike down laws, but also those that fail to do so. For a recent liberal example, see here; a recent conservative example is the denunciation of Kelo by some on the right as "judicial activism" (I personally agree that Kelo was wrongly decided, but not because it was "activist").
Of course, we could instead define "judicial activism" not as overruling other branches of government but as doing so without adequate justification. For example, originalists might argue that judges are "activist" when they strike down laws that are not forbidden by the original meaning of the Constitution. In that case, however, the real intellectual work is being done not by the concept of "activism" but by whatever interpretive theory is used to determine whether a given law violates the Constitution or not. For the originalist, the key analytical concept is original meaning or intent; "activism" becomes just another label to attach to decisions that aren't justified on originalist grounds. I don't object if people want to use the word "activist" in this way. But I also don't see how it adds anything to the argument.
There is one group of critics who can use the concept of "judicial activism" in a coherent and analytically useful way. A few scholars - including Robert Dahl and Mark Tushnet on the left, and Lino Graglia on the right - want to abolish judicial review altogether, regardless of the interpretive methodology the judges use. For writers in this camp, it indeed makes sense to define all judicial overruling of the political branches' actions as "activist" and to denounce any such decisions. For the rest of us, however, debates over "activism" are likely to add little of value to the deeper underlying debate over when courts are justified in using their power to strike down the actions of other branches of government.
Related Posts (on one page):
- Whelan Rejoinder to Miles/Sunstein:
- How Useful is the Concept of "Judicial Activism"?
- Miles and Sunstein's Response to Their Critics:
- Miles/Sunstein Response to Critics:
- Whelan on Miles/Sunstein:
- Measuring Ideological "Activism" in Supreme Court Justices' Decisions to Overrule Regulatory Agency Actions:
- Which Justice Is Most "Activist"?
This definition of "judicial activism" is not just a synonym for "incorrect decision" (e.g., using a faulty interpretative theory is not automatically considered 'activism'), but I don't know if you consider it 'useful'.
Since no judge will admit to this sort of thing, and since there are neutral principle-based arguments on both sides of nearly every case, judges can avoid the activism label simply by saying that they were persuaded by the neutral arguments of the side they happen to favor.
So people like Sunstein have to devise clever empirical studies to uncover bias--e.g. to see whether a judge's decisionmaking patterns correlate more with bias than with other, more acceptable factors. It's imperfect, but it's a start.
The alternative is to criticize decisions that seem so poorly reasoned that the authoring judge cannot have been in acting in good faith in deciding the case as he did.
Alas, I think the problem is, in general, undecidable. But at least in extreme cases, as anonVCfan mentions above, the judge's reasoning may be so muddled that it compels a conclusion of judicial activism.
Another approach would be to try to see if the judge is consistently following a coherent interpretative ideology. If a judge rules consistently, then there is less evidence of judicial activism.
One goal of liberals over the past 20+ years has been to enlarge the term to include conservatives, and we have been pretty successful at that.
Another Commentor,
I think your approach overlooks the fact that sometimes precedent is wrong, and stare decisis is not necessarily a virtue if it compels a court to maintain the errors of the past. There's nothing activist, again as the term is generally/intuitively used, in overruling a prior precedent that reached an objectively incorrect conclusion. Moreover, regardless of objective correctness, a subsequent Court could disagree with the ruling of a prior one without the partisanship or policy preferences generally associated with the notion of judicial activism playing a role in the decision to overrule the prior decision.
As I recall there was a study in the 90%'s that used that as a metric to measure activism. And as I recall it found things similar to the Miles Sunstein study. (IE Ginsburg was "Activist" but so were Thomas and Scalia)
But I think it was also criticised on much the same grounds that Miles and Sunstein are, that is, those that use "judicial activism" to fit their own motives thought the authors had "altered the definition" by failing to include which decisions were "wrong."
Oh I appear to have changed a word or two.
I'd say "judicial activism" is a subset of "opinion with which I disagree/don't like." Using the term is equivalent to accusing a judge of acting in bad faith of the variety described by Anonymous Coward #39841. This is different from an accusation of carelessness, stupidity, or having a generally incorrect understanding of the law.
It's obviously a tough thing to objectively "prove." That doesn't make it meaningless charge, but it may make it one of limited practical use.
Or to declare results they don't like as by definition biased.
The issue is not whether/how often federal agencies are overruled, Congressional actions are struck down, or precedent is overruled. The issue is whether decisions appear to be based on the law as written or on desired policy outcomes. Merely by making the complaint of "judicial activism" on implicitly assumes an "originalist" or similar philosophy.
It's certainly possible for conservatives to ignore the law to get what they want while pretending otherwise, and its a case of hypocrisy when they do. And human nature being what it is, they surely will. What liberals have been doing for many years is quite different - claiming that it is right and proper for courts to think about politics and outcome more than they think about law and process. "Living document" "Evolving standards" etc.
For liberals to catch conservatives in instances of hypocrisy and loudly point it out is a perfectly legitimate "tu quoque." For them to claim conservatives do it more requires them to ignore their own stated political philosophy.
Ahhhh, youth! Browse some old law journals from the 60's or the early 70's. Among the academy, "judicial activism" was primarily used as a positive term. A rough definition would be 'the judiciary's use of creative legal analysis to reach the right result for social change.' I think there was a consensus that the Warren Court was an activist court; the debate was whether activism was good or bad. The Right has won that debate.
Although I don't think there was ever a precise definition, I do think judicial activism was a useful term, at least in the you-know-it-when-you-see-it' sense. Unfortunately, I have to agree that it is no longer a useful term.
Most judges would agree that they are to base their decisions on some source of authority other than their own preferences. That authoritative nature of that source ought to be rooted, at some point, in the consent of the political community and, at some point, be subject to alteration by that community.
Judges develop a series of techniques that are designed to keep them moored in these sources, i.e, beginning with the text (and ending there if its unambiguous), eschewing standards that provide little or no guidance,etc. While, as Ilya argues, you can say that there is a more precise term than activism or restraint for the source of these technigues and that "activism" represents a value judgment on other interpretive methods, I am trying to rehabilitate a term that the public actually uses and senses to mean something.
Judges differ in the extent to which they are committed to these techniques. An individual judge may embrace or abandon them based upon the outcome she prefers. Therein, I think, lies the core of activism v. restraint.
Looked at in this way, I suppose that you could say that there will be very few cases that can be safely characterized as "activist" and that may be so. I certainly find that to be the case, although I also think that the concept retains some value in talking about certain types of judicial decision-making.
Rick Esenberg
Marquette University School of Law
Specific citations, better yet links, would be much appreciated.
I think there was a consensus that the Warren Court was an activist court; the debate was whether activism was good or bad. The Right has won that debate.
Although I don't think there was ever a precise definition, I do think judicial activism was a useful term, at least in the you-know-it-when-you-see-it' sense. Unfortunately, I have to agree that it is no longer a useful term.
The term "judical activism" has become less useful due to deliberate obfuscation by those who lost the public debate on whether it's a good thing, but wish to continue using it anyway. Miles &Sunstein's work is an example of this strategy in action.
Anyway, you are assuming that Miles &Sunstein have actually demonstrated anything meaningful. I believe I have demonstrated that they have not. OK, assume it's a fact that businesses are more successful than NGOs at fighting the EPA in the supreme court. So?
Is the EPA after four years of Bush really "conservative" by any common-sense definition, or just "less liberal"? Unless this question is addressed, the results are meaningless.
If you grant that a Republican led EPA is "conservative",
then how is a business loss to the EPA a "liberal" victory? Isn't this rather a fight, not between liberal and conservative, but between different varieties of conservatives (libertarian versus authoritarian) and thus irrelevant to the analysis?
If you admit that the Warren Court was very active in a liberal direction for a long time, then won't there need to be a lot of work doen to put things right? Is it fair to treat undoing someone else's activism the same way you treat the problem being responded to?
Miles &Sunsteins "analysis" strikes me as one of those many cases where "social science" is used in the hopes that its the methodological smoke and mirrors will distract the audience from the implicit philosophical assumptions that really drive the conclusions of the work.
This is all a waste of time, of course, but I thought I'd give it a try.
Never is a long time. You may want to check out:
Ronald Dworkin, The Jurisprudence of Richard Nixon, 1972. http://www.nybooks.com/articles/10204 which advocates judicial activism in the sense of bringing practical moral judgment into Constitutional decision-making.
Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press), is also interesting as a cautious advocacy of activism.
My memory tells me that Judicial Activism was largely seen as a positive thing in the academy in the 1970s, but I don't have access to a literature search.
I am not an attorney. I will give a personal example refuting the above. In the recent Georgia statutory rape case, I totally agree with the decison. The punishment was ludicrous. However, the legislature and governor enacted a law specifically preventing the law from being retroactive. Since no one seemed to feel the new Georgia law was unconstitutional the Georgia Supreme Court decision was "judicial activism".
My personal definition is when in order to achieve "justice" or "fairness" the courts choose not to follow the letter of the law. Laws are enacted by the legislature and executive branches. if the results are not fair it is not a function of the judiciary to change the law.
Yet our nomination and confirmation process -- the time when arguments about "activism" heat up -- has become all about Roe. Amazing.
More amazingly, the "conservative" nominees all play the game of being undecided on it, and the GOP presidents all have to swear that they're NOT using a litmus test. By contrast, the Dem presidential candidates all openly promise the litmus test.
As long as all of the above is true, I think yes, it is a useful term, and no amount of Scalia's purported hypocrisy on Raich can trump the absurdity of Roe and its place in the whole game.
I also see a whole lot of the temporal special pleading in this thread, as strange and aparantly politically motivated respect for stare decises that was never held by, for example, the warrent court. In a way, it strikes me as analogous to the fatuous arguments "I have free speech, and you are violating mine if you criticize it"
Juduicial activism describes something real. Like most of real life, it is not surrounded by a bright line - but a dark form in the middle of shades of gray. That does not make it unreal - and arguments from folks professing subtelty except when they don't like it are unconvincing.
Daniel San is exactly right, local Judges used to run for the bench with claims they would be activist. 1960's Democrats used to praise judicial activism. It is a word like Liberal, that used to be worn as a badge of honor. Doesn't mean it was right, then, but claiming it never existed is, well, shallow.
It is still usefull today. Like many things that are potentially a slur, it is also over-used. In particular it is over-used by those whose beliefs would have proudly claimed the term a generation ago.
Perhaps we're conflating two different activities with the term Judicial Activism - going beyond and opposing the text of the law. Intentionalists may not feel the former is in fact Activism. Is this where the uncertainty over the meaning of the term comes in?
As to the notion of elimination of judicial review, IANAL, so I may be missing the argument here, but this seems like throwing the baby out with the bath water. Altering the constitution was made difficult for a reason, and this seems so simple that it must be wrong, but the Judiciary exists as the third branch to make sure that the first two don't change it through legislation or executive order. Are they really proposing that this system be fundamentally changed?
[1] bring about substantial legal or social change;
[2] in the absence of clear constitutional or statutory language mandating such change, or in apparent contradiction of the applicable language;
[3] where the policy outcome is the personal preference of the judge or judges;
[4] the change is something that would logically be enacted by the legislature or administrative authority, or the amendment processs.
Roe v. Wade is an obvious example of this, as are Griswold v. Connecticut, Lawrence v. Texas, Roper v. Simmons, Goodridge v. Department of Public Health, and Dred Scott v. Sandford.
KELO v. City of New London is not. It changed nothing, and the Constitutional question isn't obvious.
Not all four parts may be prominent in every case. In Brown v. Board of Education, parts 1, 3, and 4 are present, but there is a reasonable case that part 2 is contradicted (the 14th Amendment basis). Against this is the magnitude of the change that was imposed. It might be argued that Brown is legitimate judicial activism, because the Court merely required the legislature and administrators to do what the Constitution pretty clearly requires, a duty that was illegitimately evaded by them and by previous Courts.
I further STM that parts 1 and 2 can balance or combine: if [1] is small, but [2] is huge, that's a hit; but if [2] is negative (i.e. the language supports the court), that can offset a big [1]. (Then the question arises, if the language supports the decision, why is the decision a change?)
Likewise [2] and [3]. [4] is also a possible contributor, but not required, if the other parts are met.
Exactly. Judge John E. Jones III asserted in his written opinion in the Kitzmiller v. Dover intelligent design case that he was not an activist judge, but he said in a Dickinson College commencement speech that his Kitzmiller decision was based on his notion that the Founders believed that organized religions are not "true" religions. He said,
So the Kitzmiller decision was obviously an "activist" decision because Jones crossed the line from neutrality towards religion -- the establishment clause's position -- into hostility towards religion. Regardless of whether or not intelligent design is religion, this hostility towards organized religions meant that he was prejudiced against the defendants. But because he thought that he was following the intentions of the Founders, he did not see himself as an activist judge.