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Judical Activism or Judicial Restraint?

“Judicial Activism” has long been a cause of political angst among ‘conservatives’. Recently ‘liberals’ have begun countering the ‘conservative’ critique of an activist judiciary by shifting the terms of the conversation — by asserting that ‘conservative’ judges are “activist” too and that ‘conservatives’ don’t really object to “activist” judges, per se, but merely to “activism” that results in decisions they don’t like.

The shift has been accomplished by a subtle re-definition of the term “judicial activism” to mean, not what it has traditionally meant to ‘conservatives’, but “any action taken by a judge to overrule a legislative or executive authority”.  By the new ‘liberal’ definition, an “activist judge” is any judge who “acts” to apply the constraints of law to the legislature or to the executive; and we must presume that any judge who is not “activist” is, therefore, “passive” — and that the ‘conservative’ ideal must be a judiciary of sycophantic wimps.

I wrote this to counter a particular example of that assertion in the context of a particular California Supreme Court decision. It was submitted to The New York Times but not published.

14 August 2004

In your editorial about the California Supreme Court’s decision on gay-marriage licenses issued in contravention to state law by the mayor of San Francisco, you threw in the snide side comment that the decision “somehow drew no new conservative outcries against ‘activist judges’” — implying that such an absence indicated both hypocrisy and imprudent judgment on the legal issue, yet another example of conservative intransigence and (dare we say it) stupidity.

But neither is the case. The ruling required no novel legal theories or new constructions — no “activism” (as opposed to “action”) — regarding either statute or constitution; rather it was a perfect model of the traditional role of jurisprudence and separation of powers: to uphold the rule of law by holding the executive to the a priori terms of its text. It was, in fact, anti-“activist” in the best conservative tradition: the court, which we all suspect is sympathetic to the cause of gay-marriage, nevertheless declined to re-interpret the law or to allow an exception to it in the name of achieving the desired outcome.

Such innuendo is intellectually dishonest and unseemly. If you want to criticize conservative philosophies of jurisprudence and aversions to “judicial activism” that is your right. But, if you so choose, please do it honestly and straightforwardly, and with a full understanding and appreciation of the philosophies and of their application.

© Copyright 2004, 2005, Augustus P. Lowell

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