Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
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.