What’s Wrong with Judicial Activism Anyway?

Everybody knows that judicial activism is a bad thing. There was a time when liberals flirted with the idea of reappropriating the term and celebrating their newfound commitment to aggressive judicial action, but that time has passed. The Kennedy brothers thought it was a positive good that a potential nominee (Byron White) was “basically an activist.” Justice Arthur Goldberg thought of himself as a judicial activist. Legal theorist Ronald Dworkin began his career calling for “an activist court.”

But judicial activism is more often used a smear word than as a term of praise. Beyond that, as Bradley Canon, Craig Green, and Keenan Kmiec have separately shown, there is little agreement on what exactly the crime of judicial activism entails. The New Deal historian Arthur Schlesinger Jr. introduced the term when describing the divisions on the New Deal Court. Justices like William O. Douglas were, he thought, “activists,” who looked to use the judicial power affirmatively to promote social welfare, while justices like Felix Frankfurter had adopted a posture of restraint, expanding the scope of legislative discretion. The judicial activists were influenced by the Yale School of Legal Realism, with its doubts about legal determinacy and judicial objectivity. The best judges could do, from their point of view, was to be self-conscious about their own policymaking role and try to use their power to make the world a better place. Schlesinger was sympathetic, but like others after him he concluded that such “basic decisions” were better made in politically accountable institutions rather than by politically insulated judges.

From those origins, it is perhaps not surprising that the concept of judicial activism proved so pliable. Schlesinger was echoing elements of Progressive thought. If constitutional adjudication was a form of discretionary policymaking, then why should those policy decisions be made by judges rather than by the people or the people’s most immediate representatives? The greater the scope of judicial activity, the more restricted the domain of popular politics. To the extent that judges exercised the power of judicial review, the discretion over how best to advance the public good was transferred from legislators to judges.

Politicians from Franklin Roosevelt to Richard Nixon could get behind that complaint. The rhetoric that Nixon used to assail the Warren Court was remarkably similar to that of the Progressives and New Dealers in denouncing the conservative Courts of the early twentieth century. The concept of judicial activism is both malleable and hollow. It has little substantive political content, and as a consequence can be used for a wide variety of political purposes.

By being so malleable, the charge of judicial activism doesn’t tell us much about what the Court has actually done or the mistakes it might have made. The charge tells us that the speaker dislikes what the Court has done, but it doesn’t tell us why the Court was unjustified in doing it. The complaint against judicial activism is further complicated by the fact that very few contemporary politicians want to follow Justice Frankfurter down the path of generalized judicial restraint. Even Schlesinger (and Frankfurter, for that matter) excepted cases involving “fundamental rights” from his general preference for giving legislative discretion free play. The advocates of judicial restraint did not object to judicial review as such, only to the wrong kind of judicial review.

But that suggests that we need a theory of when judicial review is exercised correctly and when it is exercised incorrectly, when the nullification of legislation might be justified and when it might not. For pure Legal Realists like Justice Douglas, bad judicial review was simply judicial review that did not advance the public good. For those who accepted Legal Realist premises, disagreeable decisions could always be characterized as substituting judicial policy preferences for legislative policy preferences. Agreeable decisions could always be characterized as the valorous protection of fundamental rights.

Rather than empty complaints about judicial activism, we would be better served by explanations of how judicial decisions are mistaken. The charge of judicial activism adds a patina of illegitimacy to constitutional disagreements, but it is illegitimacy on the cheap unless grounded in an accepted broader theory of judicial review. In which case, the problem is not with judicial activism as such, but with the systematic adoption of a flawed approach to the exercise of the judicial power.

Reader Discussion

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on April 21, 2014 at 18:09:06 pm

Here's a proposal: judicial activism is judicial entrepreneurship, that is any time judges act with conscious disregard of the actual contents of the Constitution or other law, whether acting to subtract what is plainly there (Blaisdell) or to add what is plainly not there, whether a new federal power (Wickard) or a new prohibition (Roe). Obedience v. creativity.

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David Upham
on April 21, 2014 at 19:11:16 pm

Agreed! You took the keystrokes right out of my keyboard.
I would, perhaps, strike the word "conscious" from your comment. No, not because the Black Robes sometimes render judgements that may cause one to question their sentience at the time of drafting but because, I believe, certain justices do not necessarily make a conscious effort to "read into or out of" the constitution those protections that they either favor or disfavor. thus, it may not be willful disregard for the document but rather sometime which grows out of their particular world view / ideology. If one believes that all law flows from the state, then one simply sees the possibility for the state to enact whatever mischief it desires. This is reflexive behavior.
If one could delineate between "policy" and review for compliance with the constitution, that would be a starting point. Judges ought not to make policy. Judges ought to review "cases and controversies" - nothing more.

As Prof. Whittingtion has shown in his book on Judicial Supremacy, the other "co-equal(?)" branches of government have abetted the Judiciary in its arrogation of "ultimate" interpreter of the constitution. He is correct in this regard - it is a rather sorry (yet understandable) record of abasement that both the Executive and the Legislature have recorded over the years and, to my mind ,is illustrative of the triumph of convenience over conviction. Let the courts provide cover for this "unpopular" (insert any policy you desire here) decision. We did not do it - the courts did.
Perhaps, the Congress should once again assert their role in constitutional interpretation as should the Executive. At a minimum, the Congress should preclude the Courts from considering certain issues as is their constitutional right to do. oops, I forgot, didn't they try that in Hamdan and the Black Robes, including our friends Scalia and Thomas, ignored the Congressional restriction.

Lastly; Professor Whittington: In your book you appear to be somewhat accepting of "judicial" policy-making and go so far as to assert that the court exercises a 'constitutional veto" I am not certain that I am reading this correctly and that I may be confusing the historical judicial overreach with what you may be limiting to purely Constitutional interpretations.
What sya you Professor?

take care

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on April 22, 2014 at 11:29:58 am

Outstanding analysis. Yes, "Judicial Activism" is another of those smears, like "conspiracy theorist" that somehow sounds bad and is too often used to obscure the real objection while creating hostility to the action or person thus smeared. It may even obscure it for the speaker.

As a culture, and in the way we train upcoming generations, we should reject the over-casual use of smears. They may have a value as a form of shorthand, but we should recognize the potential they have in disinforming. On hearing a smear, we should switch on the "skepticalism" circuit.

"...we need a theory of when judicial review is exercised correctly..." Yes we do. ... and since you've diplomatically avoided ideology (the real kind, not that phony version congresscritters use to mean party hackism), I'll just go right out on that limb:

1. If it isn't plainly authorized in the Constitution, as in, if one has to wrest the Constitution to "fit" it, it simply doesn't pass muster.

2. Freedom is what America is about. Freedom is when everything not specifcally forbidden is allowed. Tyranny is when what is not specifically allowed is forbidden. Jefferson, on rights, said (rough, rough paraphrase) that his freedom to swing his fist ended at the other guy's nose. Bingo. If it doesn't hurt someone, the law shouldn't have a word to say about it. Entertaining and rewarding cases in favor of laws or decisions that violate this principle should be a standard of "activism deviancy" and... it should be actionable, as in, impeachment, etc.

Judges are appointed for life, but the standard is "good behavior." This should be enforced. Good behavior can only mean 1. adherance to the oath; 2. equal justice for all of whatever "status"; 3. rejection of unauthorized (by the Constitution) legal or police power activities.

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on April 23, 2014 at 16:44:55 pm

And may i have the honor of nominating the Wise Latina for the first impeachment after her pitiful and semi-operatic dissent in Schuette v. Coalition...

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on April 27, 2014 at 13:08:10 pm

This immediately begs the question: How do Judges determine the actual contents of the Constitution? In what circumstances is Congress "abridging" free speech? I want there to be some objective basis for deciding any constitutional question that comes before the court. Ultimately, I want there to be a nexus between all branches of government and the sovereign. But I am completely confounded in finding any such mode of reasoning that is immune to the subjective judgment of the decision maker.

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R Allen
on April 28, 2014 at 22:17:35 pm

The problem of Judicial Activism is the undermining of the rule of law, the legislature and in turn the people. The role of the magistracy since time immemorial has been to rule on those matters not stated in law, but within the boundaries and intent of the law. It has never been the role of judges to rule on what the law ought to say, as opposed to what it does; and this at the heart of what judicial activist do. Judicial activist rule on personal principle, not legal. Most states hold the principle that ignorance of the law is no excuse from it, putting the onus on the individual to know the law ahead of the time of justice. However, no individual may excercise similar prudence with regard to knowing all future decisions from the minds of an as-yet unappointed judges, ruling on matters as-yet unforseen by the sum of the appointed legislators. Judicial activism creates a ruling class that is wholy unaccountable to the general populace and who rule by personal whim. Such a rule would be the purest of tyrannies.

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