Activist or Compliant?

In mid May Jeff Jacoby used his column in The Boston Globe (McCain’s Supreme Wrongheadedness) to criticize John McCain’s notion of the ideal Supreme Court justice as one who deferred to the legislative authority — and reminded us that enforcing the Enumerated Powers of the Constitution on both the Legislative and Executive branches of government is precisely what the Court was designed to do.

Alas, in making that legitimate (and essential) point he inadvertently gave succor to those who believe the court should go much further and in the opposite direction by nullifying the enumerated powers entirely, by supplanting legislative judgment with judical judgment whenever and wherever a court deems a legislature insufficiently enlightened and vigorous in pursuit of some social or political goal.

Jacoby’s offense was to accept at face value the modern framing from the “left” that an “activist” judge is merely one who exercises his or her authority to overrule the legislature; that “judicial activism” is a synonym for a judiciary fulfilling its Constitutional responsibilities. But that definition of “judicial activism” is a modern straw-man concocted to deflect criticism of judicial excess and, by accepting it without comment, Jacoby participated in that intellectual charade. I wrote this to call him to task for that. I sent it directly to him and not for publication. Although he has sometimes responded to such missives in the past, he did not respond to this one.

14 May 2008

In an otherwise admirable attempt to remind people that enumerated powers used-to-be just that — enumerated and thereby subject to strict limits — you have made a critical error in accepting and assaulting the straw-man du jour of the left.

As I have written before (here and here) to little apparent notice, proponents of the type of 20th century jurisprudence that is the target of your ire began a few years ago a concerted effort to re-frame the debate over judicial “activism” in terms more friendly to their cause. First they asserted that the term “judicial activism” had no concrete definition, that it was too nebulous to be useful in debating judicial philosophy. Next they offered their own modest definition to resolve any ambiguities associated with the term and to allow debate to proceed on a rational basis. Finally, using that new and novel definition, they published articles and studies “proving” that “judicial activism” is a bipartisan affair, that ‘conservative’ judges are as activist as ‘liberal’ ones and that ‘conservatives’ actually embrace “judicial activism” when it suits them — and that, therefore, ‘conservative’ criticism of “judicial activism” may be dismissed as mere self-serving political strategy.

The novel definition of “judicial activism” the left has been propounding is the one you seem to have adopted as your standard: “judicial activism” means judges being “active”, and specifically judges acting to overrule the choices of the legislative branches. I suppose, as you implied in your column, by that standard the opposite of “judicial activism” must be “judicial passivity”. And, if so, then you are correct to lament that “passive” judges — meaning judges who will not act to counter legislative overreach — are as much a danger as “activist” ones.

But the term “judicial activism” is derived from the word “activism” not “activity”. Activism, as in “the use of direct, often confrontational action in opposition to or support of a cause” (American Heritage Dictionary).

To quote from my own earlier article on the topic:

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.

The problem with “judicial activists” is not that they would in some circumstances decide to overrule legislative actions. It is that they would make such decisions based on some external effect that they hold dear rather than based on the specific constitutional processes they have sworn to uphold; it is that they would replace the legislative action with some other action more to their own liking rather than merely voiding the legislative action as beyond the scope of their enumerated powers.

Words matter. If the left succeeds in re-defining the very terms of debate to the point that it becomes difficult or impossible to describe the judicial behavior that is objectionable — if they usurp the term “judicial activism” (and how many others?) and replace its meaning with something less objectionable — then they win by default. Please don’t assist them any further.

(C) Copyright 2008, Augustus P. Lowell

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