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08/28/2013

Ed Whelan and Jonathan Adler on Justice Ginsburg and Judicial Activism
Michael Ramsey

At NRO Bench Memos, Ed Whelan responds to Justice Ginsburg's complaint in the New York Times that the Roberts Court is "activist":

As I understand Ginsburg’s assertion in context, she is deploying a neutered meaning of the term judicial activism, under which any vote to strike down legislation, whether or not correct, is an exercise of judicial activism.  ...

The label judicial activism and its opposite, judicial restraint, draw on separation-of-powers concerns about the proper role of the courts in our constitutional system. Their proper uses therefore depend on a sound understanding of what is, and what is not, correct constitutional interpretation (a matter on which, of course, there is plenty of room for debate). To use the term judicial activism in a manner that fails to distinguish between correct and incorrect invalidations of statutes is to abuse the term.

As I've expressed before, I have doubts about a definition of "judicial activism" that ends up meaning "An approach I don't agree with".  So I have more sympathy for Justice Ginsburg's definition.  What I find most interesting, though, is her assumption that judicial activism (by her definition) is bad (or at least that her listeners think that judicial activism by her definition is bad).  Contrast this argument by Suzanna Sherry (with responses here [in the Green Bag], here [by Orin Kerr] and here [by Ilya Somin].

There are also the questions (a) whether Justice Ginsburg is right about the activism of the Roberts Court, and (b) whether Justice Ginsburg really thinks activism (as she defines it) is bad.  Jonathan Adler comments critically on both points:

If activism is "measured in terms of readiness to overturn legislation," the current Court is not one of the "most activist courts in history," at least not compared to others of recent memory. ... [T]the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts. ...

Justice Ginsburg’s apparent concern at her colleagues’ propensity to invalidate[ ] federal legislation is curious for another reason: She votes to overturn federal legislation as much as any justice on the Court other than Justice Kennedy. She’s not only joined numerous opinions in which the Roberts Court has struck down federal laws (e.g. Windsor, AID v. AOSI, Alvarez, Stevens) , she’s dissented in cases — such as Holder v. Humanitarian Law Project and Salazar v. Buono — in which legislative action was upheld. ... As a consequence, had Justice Ginsburg’s view prevailed in every case heard in the past four terms, just as many federal law would have been struck down. So much for her allegation of "activism."

Looking at the actual behavior of the Roberts Court, it becomes clear that Justice Ginsburg’s real complaint is with the substance of specific opinions, not that the Court is too "activist" (as she herself defines the term). Indeed, in many cases, Justice Ginsburg believes the Court is not "activist" enough, and too willing to uphold federal action.