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Roosevelt v. Garnett on "Activism":

The University of Pennsylvania Law Review's PENNumbra has posted this exchange between professors Kermit Roosevelt and Richard Garnett on the former's book, The Myth of Judicial Activism.

Richard A. (mail):
As someone who has observed the New Jersey Supreme Court for some years, I would like to offer a definition that differes from both of the above stated. It seems to me a useful definition of activism would involve the court's adoption of a positive rather than negative power over the other branches of government. In other words, simply negating a law on dubious free-speech grounds, for example, might be wrong but not activist. But when the court takes over the running of a school system, as our court has done, and orders specific amounts of spending in specific areas, this is clearly activism. Our court did the same with zoning in the area of affordable housing, again writing the law as if it were a super-Legislature.
If this ain't activism, then I would welcome a better description.
11.22.2006 2:46pm
jgalak:
Personally, I hate the term "activist" as applied to the judiciary. Courts aren't "activist". Judges don't wake up one day and say "today we'll make gay marriage legal" or "today we'll rezone New Jersey".

Case are brought by litigants (there are certainly activist litigants, ones who bring a case just to be heard, but that's another topic). A court has exactly three options - rule for the plaintiff, rule for the defendant, or, in the case of appellate courts, refuse to hear the case (which in some situations is moral cowardice). That's it. How is this activism?

In most cases, the decision is simple - uphold the rights of one, or uphold the rights of the other. Rule that a law is valid, or strike it down.

Other cases, like the ones referenced by Richard A. above, are more complicated. Without knowing the particular cases he refers to, there are cases that have arisen where a complex remedy is appropriate. The classic examples are the post-Brown v. Board of Ed. cases where courts took over school districts.

This type of remedy, while extreme, is appropriate in cases where the court orders a legislature/executive to do something, and they refuse or fail to do so in a reasonable amount of time. In the school desegregation cases, SCOTUS ordered the school districts to integrate, and many refused to do so. The courts had no choice but to micromanage the district to get the desired results.

Similarly, in the Massachusetts Gay Marriage case, the court initially ruled that the Mass. constitution gave gays the right to marry. It ordered the Legislature to draft appropriate laws to implement this. When the Legislature failed to do so to the court's satisfaction, they had no choice but to craft a more detailed remedy.
11.22.2006 3:13pm
Sebastian Holsclaw (mail):
I disagree with Roosevelt's insistence that "judicial activism" be read as "decisions in bad faith". I fully believe that Justices like Brennan believed they were making decisions in good faith (they did not often believe that the law dictated a vote other than what they gave)--but they had designed an activist role for judges that is not in fact the proper role of judges. Judging ought to be the most conservative branch of government (in terms of making changes). Its role is to apply the old rules in current situations until the rules are changed. In Constitutional law, this means until the Constitution is changed by amendment. In legislative law this means until it is changed by the legislature. When the two types of law conflict, they are to defer to the Constitution. In all cases, they are the guardians of the old order. The legislature (or amendment process) is to be the agent of change. Judges are to enforce the old order until the authorized parties have made changes.

The fuzzy area is in extensions of old law to new situations. Judges rightfully extend "search" to include new technologies for instance. If a law called "the administration of poisonous substances" an attempted murder, the discovery that a particular substance was poisonous (even if not thought to be at the time of the law passing the legislature) would let a judge preside over an attempted murder case with that substance being used as a poison. This is easy for questions of fact: "is X a poison", harder in other areas. But so long as judges are guided by the idea that they are the force of the old law, rather than the vanguards of the new law, they are acting properly.

I'm not at all certain that the idea that judges ought to be the vanguard of new ideas and new applications is as rare as Roosevelt seems to think.
11.22.2006 3:17pm
davod (mail):
The case where a Federal judge took over a school system was, I believe, in Ohio. The ordered billions spent including specifically ordering the construction of an Olympic size swimming pool.
11.22.2006 3:43pm
Richard A. (mail):
jgalak:
It's activism when the court rules, as New Jersey's did, that a constitutional requirement of free schools between the ages of 5 and 18 somehow forces the legislature to provide free preschools for 3- and 4-year-olds.

That goes well beyond simply deciding the case. I suggest you read Abbott v. Burke before commenting further.
11.22.2006 6:02pm
John (mail):
What a great name/pun for a site that discusses judicial activism!
11.22.2006 6:30pm
Jon Rowe (mail) (www):

Finally, in his recent Walter F. Murphy Lecture, "Constitutional Virtues" (published in the Green Bag), Professor H. Jefferson Powell took up the question, why does the Constitution bind?


I attended this lecture at Princeton; Robbie George's James Madison Program sponsored it. Though I have strong disagreements with George, I think he does a great job with the program and try to attend them when I can.

As far as theories of legitimacy are concerned, I find Randy Barnett's far more persuasive than Powell's.
11.22.2006 8:47pm
Richard A. (mail):
A question for those who argue activism cannot be defined: Suppose a judge, in order to remedy discrimination against a certain set of Internet users, orders every person who posts on the Volokh Conspiracy to pay $100,000 to the plaintiffs. Would this not meet the definition of activism?
11.22.2006 9:02pm
Jake (Guest):
One sign of activism may be cases where a court refuses to apply its reasoning retroactively (e.g. Miranda and Teague). These cases arguably show a court recognizing that it is breaking away from existing law and creating completely new law.

That won't hold up perfectly (we'd probably consider the court to be even more activist if it had applied Miranda retroactively), but it does provide a look into how the court thinks of its actions.
11.22.2006 10:36pm
juris_imprudent (mail):
jgalak

In the school desegregation cases, SCOTUS ordered the school districts to integrate, and many refused to do so. The courts had no choice but to micromanage the district to get the desired results.

Consider how you conflated two very distinct concepts - desegregation and integration. Desegregation post-Brown was relatively straight-forward; integration was a much broader concept. A desegragation order was not activist, but an integration order was. Subsequently, integration efforts have fallen by the wayside.

And in fact, the courts DO have an alternative to micromanagement - sanctions/penalties. These are commonly applied to balky litigants.
11.22.2006 11:21pm
Cornellian (mail):
A question for those who argue activism cannot be defined: Suppose a judge, in order to remedy discrimination against a certain set of Internet users, orders every person who posts on the Volokh Conspiracy to pay $100,000 to the plaintiffs. Would this not meet the definition of activism?

No it wouldn't because there isn't a definition of "activism." Not every bad decision is "activist" and pointing out one example of a bad decision doesn't give you a definition of "activism." Put another way, what element does your example have in common with all other "activist" decisions, but does not have in common with other decisions (even wrong, non-activist decisions)?
11.23.2006 12:56am
Cornellian (mail):
For those in the habit of complaining that the judiciary is "activist", the term means nothing more than "I don't like their decisions on a laundry list of issues I care about."
11.23.2006 12:57am
Richard A. (mail):
All right, here's a definition: Activism occurs when the judge goes beyond simply deciding a case to impinging on the powers of other branches of government. Would anyone deny that the judge in the Spallone case, in which members of the governing body of Yonkers were ordered to change their votes under penalty of contempt, was activist?
11.23.2006 1:35am
Duffy Pratt (mail):
Here are a few forms of activism:

When deciding a case, announcing a rule or a "test" that will apply to all subsequent cases. (Usually this is a balancing test of some kind, and the holding of the case typically reads more like legislation than anything else).

Deciding the case on issues that were never raised or argued. See Teague v. Lane for this, where the S.Ct. made up a new realm of retroactivity law sua sponte.

Issuing an order that seems to bind non-parties. The recent N.J. marriage case is an example, where the court seems to have ordered the legislature to pass a law.

Taking over a state prison system after concocting a class action through judicial orders. Look at the history of Judge Jusice and the Texas prison system.

Deciding constitutional questions that you could avoid. Or deciding any issue that is not necessary to reach the judgment in a case.

And arguably, taking cert on cases of first impression because they are "important."

Keep in mind, none of these things necessarily has anything to do with a judge deciding something on policy grounds. But I think they are all activist, or at least arguably so. And if you really need to figure out what activism is beyond Sean Hannity's sloganeering, maybe you could pick up a copy of, or re-read, Bickel's The Passive Virtues.
11.23.2006 3:41am
Mr L:
For those in the habit of complaining that the judiciary is "activist", the term means nothing more than "I don't like their decisions on a laundry list of issues I care about."

Seems more like the other way around -- there's a lot of definitions of 'activism' here that exclude lots of obviously bogus decisions (see Cornellian's comment for a fine example).

And it's irritating to see variations of this criticism every time this comes up. Are you asserting that many of these decisions aren't activist? If a judge can come in and make it such that Congress can't reduce the education budget without a Constitutional amendment, then either that's activist or our system is broken beyond repair.

It's like the term 'bad art'. Everybody thinks some art is bad, and we might not all agree -- but there's some stuff that everybody thinks is bad.
11.23.2006 12:29pm
Cornellian (mail):
And it's irritating to see variations of this criticism every time this comes up. Are you asserting that many of these decisions aren't activist? If a judge can come in and make it such that Congress can't reduce the education budget without a Constitutional amendment, then either that's activist or our system is broken beyond repair.

There are good decisions and bad decisions. A decision that the federal government could not reduce the amount of money it currently spends on education absent a constitutional amendment would be an example of a bad decision. I certainly don't deny the existence of bad decisions. What I am saying is that the term "judicial activism" has been coined, and is commonly used, against a laundry list of decisions unpopular with people who like to use that term, and that there is no definition of that term includes those decisions and excludes other bad decisions. It's a slogan, not a principle.
11.23.2006 9:52pm
Cornellian (mail):
All right, here's a definition: Activism occurs when the judge goes beyond simply deciding a case to impinging on the powers of other branches of government. Would anyone deny that the judge in the Spallone case, in which members of the governing body of Yonkers were ordered to change their votes under penalty of contempt, was activist?

Every decision declaring a statute unconstitutional impinges on the power of the other two branches of government, the power of the legislature to enact the statute and the power of the executive to enforce it. The other two branches might well have a differing opinion on whether the statute is unconstitutional. If you mean only the decisions that improperly impinge are activist, and the ones that properly impinge are not activist, then you're basically just saying that incorrect decisions are activist, and correct ones are not. That's not a definition.

I've never heard of this Spallone decision and don't know anything about it so I won't express any opinion on it.

What would you make of Mitt Romney's decision to ask a Massachusetts court to order the legislature to reconvene, since he wasn't happy about the legislature's refusal to deal with a proposed constitutional amendment on same-sex marriage that he supported? Wouldn't such an order be "activist?"
11.23.2006 9:58pm
pennalum (mail):
I disagree with John.

Perhaps the PENNumbra name is quaint for someone who never had to see the absurd inclusion of PENN in everything on that university's campus--from "It's a PENNstitution" to the "chalk disPENNsers" (YES, it was ACTUALLY written that way on the dispenser!)... but for me, I'm nauseous.
11.23.2006 10:29pm
Hans Gruber:
I'll read the exchange later, but let me just direct one comment to the discussion in the comments. Though the term "activist" is often misused, that does not then mean the term is "undefined" and therefore "useless." I can think of no better term (despite my dismay of how the term is misused and over applied today) to describe the general character of the Warren Court.

I suppose you can disagree with the semantics of the term (Scalia has done so) because courts "actively" involved in government, at least insofar as the constitution permits them to be, is not a bad thing. It can often be a very good thing. But that's not what the term purports to describe. I don't know, I think the term make sense, especially in the context of the 1960's "activists" who wanted to "change the world." Occasionally you'll get a judge or justice to admit as much, that they believe judiciary must work for "social justice" and promote and prod reform (Harriet Miers, of all people, gave a speech to this affect, to give one example).

If I could offer my own (yet wholly unoriginal) definition it would be that judicial activism constitutes departing from precedent and sound constitutional interpretation to further one's preferred policy objectives rather than the rule and letter of the law.
11.23.2006 11:23pm
Hans Gruber:
"I certainly don't deny the existence of bad decisions. What I am saying is that the term "judicial activism" has been coined, and is commonly used, against a laundry list of decisions unpopular with people who like to use that term, and that there is no definition of that term includes those decisions and excludes other bad decisions. It's a slogan, not a principle."

I don't think this is the case. The term is used by the right to describe decisions that conservatives perceive to be unsupported by the Constitution, the nation's history, and legal precedent. The left uses the term at least in part to muddy the waters (we don't like activists either, but conservative justices are the REAL activists!). The left seems to describe anything that departs from the last 30 years of precedent as "activist." Of course, if the radical departure from precedent is a decision they support (Lawrence, for example) they all feel differently.
11.23.2006 11:31pm
Lev:

The case where a Federal judge took over a school system was, I believe, in Ohio. The ordered billions spent including specifically ordering the construction of an Olympic size swimming pool.


Perhaps Ohio, but definitely Kansas City.
11.23.2006 11:46pm
Cornellian (mail):
It's a slogan, not a principle."

I don't think this is the case. The term is used by the right to describe decisions that conservatives perceive to be unsupported by the Constitution, the nation's history, and legal precedent. The left uses the term at least in part to muddy the waters (we don't like activists either, but conservative justices are the REAL activists!). The left seems to describe anything that departs from the last 30 years of precedent as "activist." Of course, if the radical departure from precedent is a decision they support (Lawrence, for example) they all feel differently.


When Scalia said in Raich v. Ashcroft that the federal government could regulate, via the interstate commerce clause, one person growing marijuana in her own backyard for her own personal use I didn't see much conservative condemnation beyond Clarence Thomas and a few libertarian purists. When Scalia took the doctrine of sovereign immunity, a doctrine stated nowhere in the Constitution, and extended it to private contractors in the Bell Helicopter case, I didn't see much conservative outrage there either despite the absence of any precedent or orginal understanding support for that result. How many conservatives are willing to say a word against Brown v. Board of Education today, despite the arguably paper thin support in original understanding for that result, and despite the fact that it directly contradicted prior precedent in the form of Plessy v. Ferguson? How many conservatives in Congress spoke out against the Terry Schiavo law, a statute about as far beyond the limited government outlined in Article I as you can get? How many conservatives are willing to ask publicly the question of whether the federal government's ban on so-called "partial birth abortions" is within the scope of Article I?

One can certainly make the argument that a particular decision is not consistent with the Constitution or not consistent with precedent (not sure what inconsistent "with the nation's history" means or why that should matter - our history is filled with stuff that is now widely accepted to be unconstitutional). However, the "activist" criticism is not applied to all such decisions. It is applied to some decisions of that nature, and others that are not. Conversely, it is not applied to to any number of decisions that are inconsistent with the Constitution or with precedent. The only common thread is the policy preferences of those who are fond of using the term.
11.24.2006 12:03am
pdxnag (mail) (www):
Cornellian,

Toss in the Gore case. The court preempted the traditional role of the House to resolve the Presidential selection process in the event of (perceived) problems in the electoral process in a given state. The House did not need the court to say anything at all to consider the Florida election as going for Bush (or Gore, or no one). And, had the court gone for Gore, the House could have simply ignored the US Supreme Court. A lazy House is hardly a reason to ignore the extraordinary power that was assumed by the court. I just don't know whether to call it judicial activism or political in-activism on the part of the House so as to let them escape the brunt of the political heat that would accompany a truly "political question" if ever there was one.

The court is just another hoop through which the weight of government comes down on people -- real people not artificial people. The system needs a court to act, and act properly, as a limiting-filter for the assertion of the power by others . . . just as surely as a computer operating system needs a printer driver to operate in conjunction with a printer. Without a driver the whole thing crashes or fails to function, regardless of whether one views the people as the controller or as the controlled. A self-neutered judiciary (rendering themselves harmless to limit government action) is little more than tossing out the entire scheme of having three co-equal branches, as a means of protecting individual liberty. Orwell once had something to say about when the advocates of one thing mean exactly the opposite.

Shall we limit the judiciary to limit the government so as to maximize our individual liberty. This does not need a whole book to be presented as an internally incoherent argument and thus absurd from the outset. Unless protecting liberty is not the reason for having our government. In which case the whole thing has been consumed by the accumulated weight of multiple exceptions that have simultaneously swallowed the whole. All I see are a number of big fish competing, at the scent of blood like sharks, to consume liberty. It would be equally illogical to expect two sharks to agree to let the prey escape (from a simple calculation of maximizing their aggregate benefit as predators).

For fun read:
Galbraith's piece on Predator State.
11.25.2006 9:40am