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More on Judicial Activism

Over at the Originalism Blog, Mike Ramsey responds to my engagement with his prior post on judicial activism.  Mike has two main arguments for his understanding of judicial activism as the strong exercise of judicial review rather than as an unjustified exercise of judicial review: (1) people disagree on what is an unjustified exercise of judicial review, and (2) judicial restraint is the opposite of judicial activism and judicial restraint is not the same as following the law.  In the interests of not excessively prolonging the debate, I will try to keep my reply brief as possible.

My main response is that Mike doesn’t engage with my main prior point, which is that judicial activism has a variety of meanings — as Larry Solum says — and that it would confuse people for me to use the term to describe originalism (since they would seem to think I was criticizing it).  It is better to use a new term, especially because judicial activism is so contested.  I suggested strong and weak exercises of judicial review, but other possibilities may be better.

Mike is correct that judicial restraint, as the opposite of judicial activism, appears to support his understanding of judicial activism, but all that shows is that the judicial activism/judicial restraint dichotomy is part of the understanding of judicial activism that he supports.  That does not mean that it is the best understanding of judicial activism.  But even the support he derives from judicial restraint is not that strong.  People who defined judicial activism as the opposite of judicial restraint favored  judicial restraint and therefore part of their definition of judicial activism was improper judicial action.  If we don’t agree with them about recommending judicial restraint, there is a good reason not to confuse matters by using judicial activism as the opposite of restraint.

Finally, I was curious how the dictionary defined judicial activism.  According to Wikipedia, Black’s law dictionary defines it as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”  The Free Dictionary online defines it as”an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court).”  Other definitions on line are similar.  These are obviously not dispositive as to the proper definition, but they do suggest the confusion that would be created by an originalist describing originalism as judicial activism.

Reader Discussion

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on April 08, 2012 at 12:32:16 pm

Perhaps, for your purposes, you have come upon something that can be described but not defined.

There would seem to be no doubt that it would require positive actions, rather than the negating of the actions of others to arrive at a congruent description. Basically, the judicial action would have to result in formulating or limiting Rules of Policy that are intended to direct human conduct.

An example would be Kansas City school cases, and the directives of the Court, prescribing facilities, taxation, etc..

But, a judicial action as to the validity of Rules of Policy within the confines and limits of prescribed Law (the establshed Obligations of should and should not) is still, in our system, a "non-activist" judicial function.

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Richard Schweitzer
on April 08, 2012 at 20:59:36 pm

I think you get very close to the point here, but adopt an unnecessary constraint when you state that judicial action "would have to result in formulating or limiting Rules of Policy that are intended to direct human conduct." You are spot on in your identification of policy and the effect on human conduct. I would submit however that what separates the judicial activist from the non-activist is where the policy that affects judicial decisions originates. If it comes from the legislature, custom, precedent, etc., there seems to be no controversy that a decision reflecting this policy is "non-activist." When the policy originates with the court, <sua sponte the decision is activist regardless which way it cuts.

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z9z99

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