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04/10/2012

Orin Kerr on Judicial Activism
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has these thoughts: The Different Meanings of Judicial Activism -- and Why They Matter for the Individual Mandate Case.

My view is consistent with his meaning #2, which I think is well put.  ("The decision expands the power of the courts to determine the rules of society").  On this meaning, he adds: "This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn’t necessarily a bad thing."  I agree.

I'm skeptical that his #3 ("The decision was not consistent with precedents"), which he seems to like, is meaningful, because consistency with precedents is so often in the eye of the beholder.  Further, I'm not sure it can or should be called "activist" to read precedents narrowly when the precedents themselves appear based on result-oriented adjudication, are otherwise contrary to one's view of the rule of law, or aggressively expand the power of courts.  Otherwise, "activism" becomes a one-way ratchet -- it would be "activism" to try to limit an "activist" decision.