Judging Judicial Activism

Yesterday at the Cato Institute, a panel of legal commentators discussed Clint Bolick’s new book, David’s Hammer: The Case for an Activist Judiciary. Joining the author on the panel were M. Ed Whelan III, President of the Ethics and Public Policy Center and contributor to National Review Online’s Bench Memos blog, and Jeffery Rosen, journalist and author of The Supreme Court: The Personalities and Rivalries That Defined America. The panelists engaged in a lively discussion about whether “judicial activism,” a term used pejoratively by the right, is actually such a bad thing. Bolick praised “judicial activism,” making it clear that it is the proper role of the judiciary to strike down unconstitutional laws. He focused on the courts’ role as protector of the underdog and stressed that the judiciary should not always yield to the will of the majority.

Whelan criticized Bolick’s concentration on the value of liberty and suggested that “judicial activism” should be defined not as a court striking down a law, but as a court making a wrong decision. The other panelists suggested that such a definition merely allowed commentators to make unprincipled use of the phrase when railing against decisions which with they disagree. Whelan then retreated back to originalist rhetoric about “framer’s intent” and “the Constitution in exile,” suggesting that these concepts provide firm guidance for interpreting the Constitution. (Considering how so-called originalist analysis often leads to inconsistent or unpredictable results, we have some serious doubts about that!)

Rosen offered Bolick a different criticism, saying that judges should try with all their might not to strike down democratically enacted laws, instead deferring to the political branches on all close questions. Bolick countered Rosen’s criticism by pointing out that “judicial abdication” or “judicial passivity” can be just as dangerous to freedom and democracy as “activism,” especially when it means judges are not enforcing—or essentially writing out—provisions of the Constitution.

Overall, the discussion proved yet again that the far right's use of the “judicial activism” label is simply a misleading way to describe any judicial decisions they happen to disagree with.