We hear a lot about “judicial activism” these days. But it’s always sort of an awkward charge to make - because judges, especially of the Supreme Court variety, aren’t “people like you and me.” While there aren’t any particular training qualifications for being an elected official, to be a high-ranking judge requires years of highly specific training and experience. One has to have the appropriate degree, have passed the appropriate exam, and then on top of that to have gained the respect of his peers. So I’ve always felt a bit impertinent accusing judges of “judicial activism;” they are undeniably more qualified than me to interpret the law.
Ilya Somin over at the Volokh Conspiracy wants to take it a step further, though, and say that “judicial activism” is not only impertinent but meaningless.
Unless -like Tushnet on the left, or Lino Graglia on the right - you want to do away with judicial review generally or severely restrict it, it makes little sense to criticize decisions as “activist” rather than “wrong.” As between supporters of strong judicial review, the real debate is indeed over competing “views about what the Constitution properly interpreted really means.”
I would like to respectfully disagree. While it’s certainly true that what one sees as “judicial activism” will to a certain degree be influenced by what he thinks the Constitution, properly interpreted, means, it is simply incorrect to say that people who cry “judicial activism” are using that as fancy-pants-speak for “I disagree with the decision.” No, “judicial activism” refers to a specific kind of “wrong,” and it is a pejorative because it implies some kind of duplicity on the part of the “activist” judge. Not just an error, but a deliberate or dishonest error. At the time of writing, Wikipedia has a nice, clear definition of the term as I’m accustomed to using it:
Judicial activism is a pejorative term for the misuse of judicial power for the purpose of obtaining a predetermined judgment based on the political convictions of the judges without regard to the U.S. Constitution, written law or legal precedent.
That packs a bit more in than just “being wrong.”
There’s a simple test, in fact, to determine whether judicial activism is a meaningful category over and above mere “wrongness” for you. You just have to ask yourself if you can imagine a court case in which you liked the policy effects of the outcome but find the decision itself to be plainly at odds with constitutional law. If you can imagine such a thing, then you have a distinction between “procedurally correct” and “politically expedient.” The only missing ingredient here is intention. Judicial activism is any situation where what is “procedurally correct” doesn’t agree with what the judge finds “politically expedient” and there is reason to believe that he allowed political expedience to override what is procedurally correct. “Judicial activism,” therefore, isn’t merely being wrong about a ruling, it is additionally an accusation of a specific type of abuse of power.
For my own part, I can cite the infamous Roe vs. Wade as a decision whose policy consequences I like, but which is plainly procedurally incorrect. That alone is not enough to accuse Harry Blackmun of judicial activism, but the fact that he spent so much time on the lecture circuit arguing that the decision he authored in Roe was vital to gender equality probably is. The implication is that Blackmun had strong personal feelings on the issue and allowed those feelings to determine the ruling for him, rather than a strict adherence to precedent and constitutional laws and procedures. If I believed that Blackmun honestly felt that the 9th and 14th amendments together guaranteed an implied but never enumerated right to abortion, then I would simply accuse him of an honest misreading or misunderstanding of the Constitution. But in fact I don’t believe that it was an honest misunderstanding. I think Blackmun was abusing his power - perhaps not entirely consciously, but doing it nonetheless - to obtain a result that he found politically desirable. He found himself in a position to shape policy on an issue he felt strongly about in the direction he wanted, and the temptation to do so clouded his better legal judgment. Which is to say that the opinion he authored functions more as a rationalization than a justification.
Is it impertinent of me to say so? Undeniably. Justice Blackmun has (erm, “had”) a vastly superior education in constitutional law than my own (which consists of reading Court cases for fun over the course of several years, really). He’s definitely more qualified than me to make these pronouncements. Notwithstanding, experts can be and frequently are wrong, and often because their positions as experts expose them to temptations and pressures that don’t affect the rest of us, as outsiders, nearly as much.
Indeed, I think the point for me about Somin’s post is that I would have thought that legal experts were even more attuned than the rest of us to the dangers and temptations of “judicial activism.” Here’s my reasoning. No one goes into law without some opinions of what the law ought to be, as opposed to what it is. There’s always a conflict between the legal system as one might wish it to be and the legal system we actually have, and surely legal experts have more detailed private descriptions of those differences than the rest of us. If nothing else, they’ve surely spent more time thinking about them. There’s also a fine line in general, I should think, between rationalization and justification. Being trained in legal theory is as much training in an applicable skill as it is in moral philosophy, after all. Some lawyers are indeed training to uphold the rule of law, but others receive the same training merely to find the weaknesses in the system and exploit them to best advantage for their employers. The skillset for these “white hat” and “black hat” lawyers is largely the same. Now, self-deception is as easy as it is ubiquitous. We, all of us, constantly struggle against what we want to believe to try to see ourselves and our place in the world accurately enough to make informed decisions. We all, from time to time, overestimate our intelligence, or our charms and beauty, or our expertise on a matter, or what we can afford, or how much of a workload we can handle, or any number of other things. Being provided with the tools of an expert as often as not merely makes one more adept at self-deception rather than at impartial analysis. I see this all the time in arguments about programming languages. There’s a certain amount of learning that seems to me to inform the debate, granted. You take a couple of classes, and your perspective honestly does change. But there’s a point beyond which new learning only seems to arm people with more tools for the debate. Someone sold on Haskell, say, only gets better at defending it in online discussions after this point. He doesn’t necessarily get any better at recognizing Haskell’s flaws or designing solutions for them. After a certain point, “religion” sets in, and the new skills you learn become just so many tools in your debating arsenal rather than real instruments for getting at the truth. Legal scholars should be and need to be on guard for this sort of thing as much as if not more than the rest of us in their own profession.
No, every profession has these temptations, the legal profession being no exception. Not every expert debate about what the Constitution means is informed and academic. Sometimes, it’s just someone being deceptive or self-deceptive and stacking the deck so that things come out the way he wants. Somin, as a legal expert himself, should recognize that this danger is real and understand the usefulness of having a shorthand name for it.
Perhaps it is the word “activism” to which Somin objects. I can understand that. After all, I’ve just made the case that a lot of what we call “judicial activism” may be self-deceptive - people rationalizing their behavior to themselves rather than intentionally deceiving people. Since the word “activism” implies a kind of conscious engagement, maybe it isn’t the best choice. Whatever we call it, I feel pretty strongly that there should be a name for it. It is an obvious temptation in the legal profession, a specific kind of being “wrong” that legal professionals should actively guard against in themselves and in their peers. A meaningful category by any estimation.