The Volokh Conspiracy - Mark Tushnet on "Judicial Activism":

In the Federalist Society online debate over the recently completed Supreme Court term, Harvard lawprof Mark Tushnet makes an important point about accusations of "judicial activism":

Those who follow the Supreme Court's work closely know that it is entirely unhelpful to talk about an "activist" Court or one that is "judicially restrained." Those terms are almost entirely parasitic on one's views about what the Constitution properly interpreted really means: The Court should be activist in striking down statutes that violate the Constitution properly understood, and restrained — actually, completely quiescent — otherwise. All the interesting work is done by your account of what the Constitution means.

For me, the interesting questions are about the persistence of a rhetoric of activism and restraint in political discussions of the Supreme Court. It's clear that politicians find that rhetoric more helpful to them than a rhetoric focusing on the Constitution's actual meaning. But why? Maybe it's that talking about what the Constitution means requires a politician to take a position — which, these days, politicians don't like, because taking a position means alienating someone who might otherwise vote for you.....

But there's one qualification. I meant it when I wrote "almost" entirely parasitic. There are a few people — me among them — who think that judicial activism is in itself a bad thing — that is, that courts shouldn't be the primary, or even an important, locus for constitutional interpretation. Of course that position is quite unrealistic in today's conditions. No one is going to strike the Grand Bargain in which conservatives and liberals would agree not to strike down laws they don't like ("laws that violate the Constitution properly interpreted," if you like).

I made a similar point in this post last year. Unless -like Tushnet on the left, or Lino Graglia on the right - you want to do away with judicial review generally or severely restrict it, it makes little sense to criticize decisions as "activist" rather than "wrong." As between supporters of strong judicial review, the real debate is indeed over competing "views about what the Constitution properly interpreted really means."

In the Federalist Society debate, Ed Whelan takes issue with Tushnet's argument and suggests that "judicial activism" can still be a useful term that "identifies one category of judicial error in interpreting the Constitution: the wrongful overriding of democratic enactments . . . That category of judicial error is distinct from a second category, which I call 'judicial passivism' — the wrongful failure to enforce constitutional rights." However, even in this modified usage, the real intellectual work is being done by whatever theory tells us which invalidations of legislation are "wrongful." Whelan agrees with Tushnet that "the term 'judicial activism' is unhelpful if it is used merely to signal one's disagreement with a ruling or if it is neutered to refer to every exercise of judicial review (whether right or wrong) that results in the invalidation of a statute or regulation."

UPDATE: Whelan has posted a further clarification of his position, emphasizing that he does "not dispute Mark's point, in his initial post, that the term 'judicial activism' does not perform analytical work in determining whether a decision is wrong. On the contrary, I explicitly agreed with it."

	[Ilya Somin, June 30, 2008 at 6:09pm] Trackbacks Mark Tushnet on "Judicial Activism": In the Federalist Society online debate over the recently completed Supreme Court term, Harvard lawprof Mark Tushnet makes an important point about accusations of "judicial activism": Those who follow the Supreme Court's work closely know that it is entirely unhelpful to talk about an "activist" Court or one that is "judicially restrained." Those terms are almost entirely parasitic on one's views about what the Constitution properly interpreted really means: The Court should be activist in striking down statutes that violate the Constitution properly understood, and restrained — actually, completely quiescent — otherwise. All the interesting work is done by your account of what the Constitution means. For me, the interesting questions are about the persistence of a rhetoric of activism and restraint in political discussions of the Supreme Court. It's clear that politicians find that rhetoric more helpful to them than a rhetoric focusing on the Constitution's actual meaning. But why? Maybe it's that talking about what the Constitution means requires a politician to take a position — which, these days, politicians don't like, because taking a position means alienating someone who might otherwise vote for you..... But there's one qualification. I meant it when I wrote "almost" entirely parasitic. There are a few people — me among them — who think that judicial activism is in itself a bad thing — that is, that courts shouldn't be the primary, or even an important, locus for constitutional interpretation. Of course that position is quite unrealistic in today's conditions. No one is going to strike the Grand Bargain in which conservatives and liberals would agree not to strike down laws they don't like ("laws that violate the Constitution properly interpreted," if you like). I made a similar point in this post last year. Unless -like Tushnet on the left, or Lino Graglia on the right - you want to do away with judicial review generally or severely restrict it, it makes little sense to criticize decisions as "activist" rather than "wrong." As between supporters of strong judicial review, the real debate is indeed over competing "views about what the Constitution properly interpreted really means." In the Federalist Society debate, Ed Whelan takes issue with Tushnet's argument and suggests that "judicial activism" can still be a useful term that "identifies one category of judicial error in interpreting the Constitution: the wrongful overriding of democratic enactments . . . That category of judicial error is distinct from a second category, which I call 'judicial passivism' — the wrongful failure to enforce constitutional rights." However, even in this modified usage, the real intellectual work is being done by whatever theory tells us which invalidations of legislation are "wrongful." Whelan agrees with Tushnet that "the term 'judicial activism' is unhelpful if it is used merely to signal one's disagreement with a ruling or if it is neutered to refer to every exercise of judicial review (whether right or wrong) that results in the invalidation of a statute or regulation." UPDATE: Whelan has posted a further clarification of his position, emphasizing that he does "not dispute Mark's point, in his initial post, that the term 'judicial activism' does not perform analytical work in determining whether a decision is wrong. On the contrary, I explicitly agreed with it."