Judicial Activism

Over at the Originalism Blog, Mike Ramsey claims that judicial activism should be defined as “as judges being ‘active’ in the sense of aggressively intervening against the judgments of other branches of government (in contrast to judges being ‘passive’ — or  ‘restrained’ — and generally deferring to the constitutional judgments of other branches).”  Under that view, originalism will sometimes require judges to be activists by striking down legislation that violates the Constitution’s original meaning.

I agree that Mike’s proposed meaning is one meaning of judicial activism.  But I don’t agree that this is the only one or the best one.  I (and many others) rountinely use judicial activism to mean “aggressive use of the judicial power that is not justified by the law.”  I don’t know why I cannot continue to use it that way.

Mike might argue, as his post implies, that the term “activism” merely suggests strong action, not illegimate action.  But the words in a legal (or political) term do not necessarily define its meaning.  To take an example from Mike’s scholarship, “to declare war” appears to suggest a statement in words, but its usage at the time of the Constitution indicated that war could be declared by words or actions.  The same holds for judicial activism — usage allows it to be used for illegitimate aggressive action.

Now, Mike is certainly correct that our debates would be better if terms had clearer meanings.  But I don’t know why that means I have to give up my usage of judicial activism, especially because that would harm — rhetorically, at least — the case for originalism.  Many people continue to associate judicial activism with bad action.  If I say, well originalism sometimes involves judicial activism, that would mislead some people to believing that I was criticizing originalism.

If we want to clarify matters, lets use new terms.  That is, after all, why people often come up with new terms.  One possibility would be to borrow the terms “strong” and “weak” from the presidential context, where we refer to a strong President or a weak presidential action.  We could then refer to aggressive judicial action as “strong judicial action” without necessarily praising it or criticizing it. Probably there are better terms that could be found.

In the end, I agree with Mike that clarity in this debate would be an improvement — I just don’t believe that the way of securing such clarity is by defining judicial activism to eliminate my preferred usage of the term.

Reader Discussion

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on April 06, 2012 at 11:45:49 am

It might be helpful if each of you could be distinct in what you mean by "Law" that is the subject of adjudication. Much, if not now the majority of, adjudication concerns "Legislation," which comprise the Rules of Policy.

To have a clear understanding of Law it must be distinguished from Rules of Policy. That requires a recognition of the distinctions of the functions of Policy established in attempts to DETERMINE courses of human conduct from those of Law which are to Examine human conduct, and its results, as they occur, to determine, not the conduct, but whether particular conduct meets, or fails to meet the levels performance of obligations commonly recognized and accepted within the social order.

Involving the Judicial Process in the issues of Rules of Policy, or commiting the Rules of Policy to examination in a Judicial Process which has been evolved to issues of Law, can result in adaptations of the Process to the differences in functions.

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Richard Schweitzer
on April 07, 2012 at 11:30:30 am

As a law Student I entirely agree with you. A judge deciding against a state body for the violation of the constitution or the rule of law is not an example of judicial activism.

Many legal theorists of the more liberal pursuasion feel that judicial activism, defined as judges exercising their authority to shape the law based on personal and political ideas, is a good thing. I am terrified by the fact that such thinking appears to be becoming more and more popular among lawyers.

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J Conway
on April 08, 2012 at 21:48:12 pm

'@ JConway, it's these times where the LAW is what is wanted. Our plastic and ever morphing levels of behavior, with acceptance on such regressive, and a rather disgusting acceptance, techniques as torture, strip searches, body scanning, vaginal intrusions, is their anywhere government doesn't go? They're already developing compounds to alter perceptions via soon to be neural-weapons.

Let's reason these issues:

1) The Florence decision. It's required to strip search an individual, who may potentially have some unknown object which may or not be a weapon, or which may or not be an illegal substance.

1a) Said object, if a weapon, will cause how much harm?
1b) Said object, if some illegal substance, will cause how much harm?
1c) How many such strip searches are required to protect whoever it's required to protect,
in any given day?

2) Airport body scanning is said to be required to discover some unknown object which may cause harm to those on a flight or the flight itself.

2a) Said object, if a weapon, will cause how much harm?
2b) Said object, if an explosive device, will cause how much harm?
2c) How many people pass through these body scanners in any given day?

3) Between these to methods, which is the more effective in discovery?

3a) If body scanners are more effective in discovery, then why not use them instead of strip searches?

3b) If strip searches are more effective in discovery, why not use the them instead of body scanners?

4) Whichever method is more effective in discovery, it must be used in both locations.

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Eric Hodgdon

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