The “Judical Activism” Straw-Man

In response to recent high-profile fights over nominations to the federal bench and to the Supreme Court, the American Left has begun a “framing” campaign designed to blunt the criticism from conservatives of “Judicial Activism” in the courts. Rather than debating the merits of that criticism or of Judical Activism directly, the approach has been, instead, a vigorous attempt at redirection — assert that the term “Judicial Activism” is ambiguous, that it has never had a precise or consistent meaning; further assert a novel and modest definition of the term “Judicial Activism” to clarify that “ambiguity”; and then prove, using this new definition, not only that “Judicial Activism” is not a bad thing but that conservative judges are as “activist” as liberal ones.

The problem with this exercise is that it is intellectually dishonest. It may suffice to provide a short-term political victory, but it does so only by ignoring and obfuscating the underlying philosphical disagreements. Notwithstanding protestations by liberal partisans and occasional misunderstandings or misapplications by conservative ones, the concept of “Judicial Activism” is not ambiguous and it does not mean what the new “framing” of it implies.

In September of 2006, The New York Times once again took up the cause, this time in an editorial noting the results of yet another “study” of the federal judiciary using the straw-man definition to “prove” that conservative jurists are “activist”. This letter was a response to that editorial. It was not published — nor was any other critique.

11 September 2006

Your editorial, Activism Is in the Eye of the Ideologist, knocks down with alacrity the new straw-man of the left: the recent and cynical assertion that “Judicial Activism” means simply “judges being active” and, in particular, refers to those who are active in curtailing the excesses of the legislative branches of government at all levels by overturning laws that go beyond Constitutional bounds. And lo! If that is what an “activist judge” is then the right is as guilty of “activism” as the left, and are hypocrites to boot for criticizing so bitterly in theory what they embrace in practice! I suppose that means anyone who doesn’t like “Judical Activism” must favor, rather, “Judical Inertia”.

It may be true that some on the right are both “Judical Activists” and hypocrites. The “right” is not as libertarian as it once was. But your evidence for that proposition is based on a trumped-up fallacy.

What you — and those others who advocate that view of “Judical Activism” — seem to have overlooked is decades of prior understanding of what “Judical Activism” actually means to those who oppose it. The term is not “Judical Activity”, it is “Judical Activism.” Activism, as in “The use of direct, often confrontational action…in opposition to or support of a cause” (American Heritage Dictionary).

The complaint is not, and has never been, that judges are acting to enforce constitutional boundaries on the legislature; it is, and has always been, that they fail to act to enforce those boundaries — or act without constitutional warrant to make up new boundaries to enforce out of whole cloth — when reading the constitution rigorously would undermine some extralegal cause to which they have committed themselves. The complaint is not that judges act, but that they act in deference to some cause other than the rule of law that they have sworn to uphold.

(C) Copyright 2006, Augustus P. Lowell

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