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Mike Rappaport


A Response on Judicial Activism
Michael Ramsey

Mike Rappaport objects to my recent post on judicial activism, and writes:

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) routinely 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.

Two quick points in response:

(1)  A core problem with using “judicial activism” to mean “aggressive use of the judicial power that is not justified by the law” is that there isn’t agreement on what is “justified by law.”  Professor Rappaport would say, I take it, that a decision is “justified by law” only if it comports with originalism (modified to some extent by precedent).  Others, however, would have a different idea of “law” that could justify a decision.  Or, they might have a different view of originalism.  Then, whether a decision is “activist” or not depends on whose definition of “law” one adopts.  The term “activist” adds nothing to the discussion.  It just means, as I said before, “a decision based on a concept of law I don’t agree with.”   I don’t see the point of defining it this way (though I agree one can define it this way and that a lot of people do).  Professor Rappaport says that there is a rhetorical advantage, because many people think “activism” is bad.  But that strikes me as exactly the problem.  It becomes no more than an epithet.

Thus, in terms of the recent debate, would a decision invalidating the health care law be “activist”?  For Professor Rappaport, I would think the question turns on whether he thinks it would be consistent with originalism and precedent.  But that’s no different from asking whether he thinks it would be wrong.  Why not simply say “wrong,” then? 

(2)  A second problem with Professor Rappaport’s definition of judicial activism is that it impedes a clear definition of “judicial restraint.”  A common intuition, I think, is that judicial restraint is the opposite of judicial activism.  That makes sense to me.  If judicial activism is the judiciary’s aggressive intervention against the political branches, then judicial restraint is the judiciary’s hesitancy to intervene against the political branches.  (And, just as judicial activism may sometimes be appropriate, judicial restraint may sometimes be inappropriate).  In contrast, I’m not sure how to define judicial restraint in Professor Rappaport’s terminology.  Does it mean simply judges acting in accordance with (his definition of) law?  If so, invalidating the health care law might (depending on one’s view of the merits) be an act of judicial restraint.  But I don’t think that’s what most people think the term means.  Alternatively, perhaps in Professor Rappaport’s view judicial restraint means what I mean by it (that is, judicial deference to the political branches), in which case it actually has little to do with its intuitive opposite.  In either case, there seems to be great risk of miscommunication and rhetorical excess.

We'd make better use of both terms, I suggest, by using the former to mean "aggressive judicial intervention against the political branches" (and the latter to mean the opposite); this would focus us on the important question of when aggressive judicial intervention against the political branches is justified.

RELATED:  Clark Neily of the Institute of Justice has a guest post at Volokh Conspiracy calling for "judicial engagement" as opposed to "judicial activism."

UPDATE:  Matthew Ing emails:

I've read with interest the recent Originalism Blog posts by you & Mike Rappaport regarding "judicial activism."  As you may be aware, a while back, Lawrence Solum posted a Legal Theory Lexicon entry that briefly discussed both "judicial activism" and "strict construction."  ...  That entry read, in relevant part: 

Judicial Activism

Since the Warren Court era, conservative political discourse in the United States has applauded "strict construction" and condemned "judicial activism" as bad.  Similarly, liberals defended Warren Court "activism."  Recently, the political valence of "judicial activism" may have begun to shift--as conservatives endorse some "activism" by a conservative Supreme Court and liberals criticize these same decisions.

But what is judicial activism? Once again, it is not clear that this phrase has any real meaning. The standard argument against the use of the term "judicial activism" is that it translates best as "judicial decision making with which I disagree." To see why this is so, once again let us consider the possible interpretations of the phrase:

Judicial Activism as Nonabstention. One idea would be that activist judges decide cases, whereas passive judges abstain. This would make sense of "judicial activism," but it is completely unattractive as a normative ideal. Judges need to decide cases; they need to be active in the sense that they resolve controversies.

Judicial Activism as Exercise of the Power of Judicial Review. A second possibility is that judicial activism means striking down statutes or invalidating executive action. A passive judge approves the conduct of the other branches of government; an active judge strikes such conduct down. Once again, this interpretation is coherent, but hardly anyone thinks that it is per se wrong for judges to invalidate unconstitutional governmental action. Very few critics of "judicial activism" would criticize a court that struck down a federal statute requiring every American to attend the services of a particular denomination. Nor would many critics of judicial activism endorse a judicial decision that upheld a law reestablishing slavery.  If "activism" means "exercising the power of judicial review to invalidate executive or legislative action," then it is a coherent concept, but it would seem to be "neutral" as between good and bad judging.

Judicial Activism as Incorrect Exercise of the Power of Judicial Review. What is usually meant by judicial activism is not simply judicial activity or judicial activity invalidating action by the political branches. Rather, judicial activism means judicial activity that wrongfully invalidates action by the political branches. This naturally leads to the question, "What makes an exercise of the power of judicial review wrongful?" The answer to that question is a theory of constitutional interpretation. Different theories authorize different sets of invalidations. So, adherents of different constitutional theories would apply the label "judicial activism" to different sets of decisions.

And that's the problem with the phrase "judicial activism." One can define judicial activism in a way that doesn't boil down to "wrong," but those definitions make the phrase useless as a term of criticism. Or one can define judicial activism in such a way that it has real critical bite, but then the phrase ends up as a synonym for incorrect. Either way, "judicial activism" is not a useful term for constitutional theorists.

Mr. Ing then adds:

If I may interject the ongoing debate:  As I read both your posts & Mike Rappaport's - and my apologies if I am misunderstanding either your position or his - it appears you are using "judicial activism" in the second sense mentioned above (i.e., "Judicial Activism as Exercise of the Power of Judicial Review"), while Rappaport is using it in the third sense (i.e., "Judicial Activism as Incorrect Exercise of the Power of Judicial Review"). 

Personally, I tend to avoid using "judicial activism," for the reasons mentioned by Solum. 

That's a reasonable and insightful set of comments, by both Solum and Ing.  I'll add two thoughts: 

First, I don't mean to say that all exercises of judicial review are "activism."  I think Professor Solum overstates in describing his category 2.  My suggested definition is that aggressive judicial interventions (which I would describe as interventions on high-profile matters of policy resting on sharply contested legal theories) are activism.  Thus Marbury v. Madison doesn't count (because it wasn't a high-profile matter of policy) and the example of forced adherence to particular religious denomination wouldn't count because it isn't likely to be sharply contested.

Second, I think judicial activism as I would define it is not "useless as a term of criticism" (quoting Professor Solum) even though it is, on its face at least, descriptive rather than critical.  It focuses attention on the extraordinary step of placing highly contested and important matters of policy in the hands of judges.  As I've said, I don't think that's necessarily a wrong step in all cases, but putting it this way illustrates the need for a strong justification whenever it's done.  And putting it this way allows people to make meaningful arguments against judicial activism and mean something more than just that they disagree with the decision in question.