Judicial Activism: Good or Bad?
The great folks over at the Institute for Justice (they litigated the Kelo case, among others) have a new report out, calling for more judicial activism, which they call "judicial engagement." I agree with this conclusion.
Too many conservatives have persuaded themselves that "judicial restraint" means that judges should never strike down a law or reverse an earlier precedent. That's just plain wrong. Judicial restraint means that judges must not allow their own policy preferences to trump the written law. But judges must enforce the Constitution, even when that means striking down a statute. That's the point of the Constitution -- it is, by its own terms, the "supreme law." On the current SCOTUS, only Clarence Thomas seems to embrace this view, for which he is regularly labelled an extremist.
The report is not perfect (some of the statistics are a litle misleading in my opinion), but I like the way IJ has recast the debate. Instead of activism vs. restraint, they propose "judicial engagement" (upholding the supreme law) vs. "judicial abdication." The other problem with the advocacy of judicial engagement is that it raises the risk -- no, wait, the certainty -- that liberals will use it against us. Indeed, the NYT law commisar Linda Greenhouse has already declared that conservatives now embrace judicial activism, so the liberals have won. Over at NRO, Ed Whelan makes mincemeat of Greenhouse's post. Suffice it say that there's a difference between "actively" upholding the Constitution vs. imposing your own policy preferences on the democratic process.
What say you? Is promoting judicial engagement worth the inevitable Greenhouse effect?
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Dec '10
Re: Judicial Activism: Good or Bad?
Judicial Engagement, activism,whatever you want to call it is very dangerous and should only be exercised by the supreme court. Stability of law is the key to a functional society. In my mind it is better to uphold a poor decision there is precedent for, and thus force the legislative branch to fix the problem created by the bad ruling, then to try to reverse precedent and destroy people's ability to trust that they know what the law is.
Feb '11
Re: Judicial Activism: Good or Bad?
I think you have been taking lessons from our esteemed President in creating straw men. I think this statement is actually the liberal caricature of what conservatives believe about judicial activism and judicial restraint. In my experience, conservatives have pretty much all been saying for years that judicial activism means just what you said: "imposing your own policy preferences on the democratic process." It has nothing to do with simply striking down laws.
Re: Judicial Activism: Good or Bad?
sdb
I think you have been taking lessons from our esteemed President in creating straw men. I think this statement is actually the liberal caricature of what conservatives believe about judicial activism and judicial restraint. In my experience, conservatives have pretty much all been saying for years that judicial activism means just what you said: "imposing your own policy preferences on the democratic process." It has nothing to do with simply striking down laws.
Alas, I don't think it is a straw man. Look at what Republican-appointed judges have done in the name of restraint/upholding precedent. It was O'Connor, Souter, and Kennedy who decided Planned Parenthood v Casey upholding Roe to avoid a "jurisprudence of doubt." The "conservative" Roberts court has refused to revisit the court's flawed 8th Amendment caselaw or its awful Slaughterhouse precedent abolishing the Privileges or Immunities Clause. Even Scalia has upheld federal regulation of purely intrastate activity (Raich) so as not to disturb longstanding precedent.
Edited on Oct 27, 2011 at 11:52amFeb '11
Re: Judicial Activism: Good or Bad?
I guess that I just view these as two separate, though related issues. That is, I don't see them as flip sides of the same coin. Judicial restraint is an issue of, as Nyadnar17 put it, "stability of law," or as you put it in quoting the Supreme Court, a desire to avoid a "jurisprudence of doubt." I don't see it as a usurpation of the legislative process. Judicial activism, on the other hand, is just that -- judges "legislating from the bench," and turning issues that are properly decided by the legislature into questions of Constitutional rights, where the Constitution is in fact silent on the issue. Now, there are times when, in exercising judicial restraint by refusing to overturn a precedent, the Court leaves in place a decision that constituted judicial activism in the first place (like refusing to overturn Roe in Planned Parenthood v Casey), but I still see them as separate issues.
Re: Judicial Activism: Good or Bad?
sdb, I completely agree that those are separate issues. I think that's why the Institute for Justice has coined the term "judicial engagement" (ie, not being afraid to uphold the Constitution even if it means overturning precedent), so as not to be confused with activism, which is, as you say, "legislating from the bench.
What I was trying to convey is that, although conservative judges are not "activist" in the sense just described, I think they often go overboard in their veneration of stare decisis. I agree with Nyadnari17 that lower courts should generally uphold precedent, but for the Supreme Court? Stare decisis should never trump a proper reading of the Constitution.
Feb '11
Re: Judicial Activism: Good or Bad?
I completely agree with that.
And Linda Greenhouse will criticize conservatives no matter what we do, so we certainly shouldn't let that stand in our way.
Nov '10
Re: Judicial Activism: Good or Bad?
I have a speech (w/ Q&A) about Judicial Interpretation given by Justice Scalia at the Woodrow Wilson Center a few years back. In it, he makes a similar distinction. He says (paraphrasing) "I don't mind the courts doing actively what they are supposed to do".
The main points he makes in the speech are that originalism is really the only valid way to interpret the Constitution and that the living Constitution will destroy the Constitution.
Agree, the courts should be activist.. just actively interpreting laws, not rewriting them and reading new rights and distinctions into the Constitution that never existed there before.
Edited on Oct 27, 2011 at 1:50pmJan '11
Re: Judicial Activism: Good or Bad?
I think we ought to be clear if what we're talking about here is constitutional interpretation, where the cost of a judicial mistake is particularly high. In the field of statutory interpretation, we might want to see judges operating in a different way. The amount of activism or restraint we want might vary depending on the ease with which we can fix errors (or overreach). Or maybe it won't.
(It's also worth noting that much of the interpretation that judges do, and the interpretation that most often affects the everyday lives of citizens, deals with statutes or common law, not the Constitution.)
In any case I think we ought to cabin the discussion of the field of law we're talking about from whether standards of interpretation in that field ought to apply to all fields.