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How Useful is the Concept of "Judicial Activism"?

In considering Thomas Miles and Cass Sunstein's effort to measure "judicial activism" and the criticism it has generated, I am increasing persuaded that it is impossible to define "judicial activism" in a way that is both 1) useful, and 2) not simply a synonym for incorrect decisions. My tentative sense is that any ideologically or politically neutral definition of "activism" is unlikely to be useful in shedding light on the normative debate over what judicial review should be used for. On the other hand, normatively useful definitions of "activism" will tend to coincide with the analyst's definition of "incorrect decision."

It is certainly possible to define judicial activism in a neutral way. For example, Miles and Sunstein define "activism" in the context of judicial review of regulatory agency decisions as any judicial decision to overrule an agency. Similarly, one can define "activism" in the constitutional law field as any judicial decision to invalidate a statute enacted by a legislature. Such definitions of activism are objective, but not very helpful. Most critics of what they call "judicial activism" don't claim that any judicial decision that invalidates an action by the other branches of government is activist. Instead, they condemn such decisions only if they think they exceed the courts' legitimate authority or misinterpret the relevant law. Thus, knowing that Judge X votes to strike down statutes or overrule agencies more often than Judge Y tells us very little that is useful in determining who is more "activist" in any sense relevant to normative debates about judicial power.

Moreover, both liberal and conservative critics of "activism" often denounce as activist not only decisions that strike down laws, but also those that fail to do so. For a recent liberal example, see here; a recent conservative example is the denunciation of Kelo by some on the right as "judicial activism" (I personally agree that Kelo was wrongly decided, but not because it was "activist").

Of course, we could instead define "judicial activism" not as overruling other branches of government but as doing so without adequate justification. For example, originalists might argue that judges are "activist" when they strike down laws that are not forbidden by the original meaning of the Constitution. In that case, however, the real intellectual work is being done not by the concept of "activism" but by whatever interpretive theory is used to determine whether a given law violates the Constitution or not. For the originalist, the key analytical concept is original meaning or intent; "activism" becomes just another label to attach to decisions that aren't justified on originalist grounds. I don't object if people want to use the word "activist" in this way. But I also don't see how it adds anything to the argument.

There is one group of critics who can use the concept of "judicial activism" in a coherent and analytically useful way. A few scholars - including Robert Dahl and Mark Tushnet on the left, and Lino Graglia on the right - want to abolish judicial review altogether, regardless of the interpretive methodology the judges use. For writers in this camp, it indeed makes sense to define all judicial overruling of the political branches' actions as "activist" and to denounce any such decisions. For the rest of us, however, debates over "activism" are likely to add little of value to the deeper underlying debate over when courts are justified in using their power to strike down the actions of other branches of government.

MarkField (mail):
Welcome to the fight. This time I know our side will win.
11.1.2007 11:54pm
Anonymous Coward #39841:
My understanding is that a judge commits 'judicial activism' if he first determines what he wants the outcome of the case to be (based on his own policy preferences, in defiance to those of the legislature), and then constructs a legal argument to support the desired conclusion. (This is in contrast to the proper process of analyzing the legal issues and following them to whatever conclusion they support.)

This definition of "judicial activism" is not just a synonym for "incorrect decision" (e.g., using a faulty interpretative theory is not automatically considered 'activism'), but I don't know if you consider it 'useful'.
11.2.2007 12:28am
Cornellian (mail):
Anonymous Coward #39841, how would you propose using that definition to separate the "judicial activism" decisions from the "non-judicial activism" decisions given that we never know what's really going through someone's mind?
11.2.2007 12:44am
anonVCfan:
My sense is that when people complain about "judicial activism," they mean some form of bad-faith decisionmaking driven by bias rather than neutral principles.

Since no judge will admit to this sort of thing, and since there are neutral principle-based arguments on both sides of nearly every case, judges can avoid the activism label simply by saying that they were persuaded by the neutral arguments of the side they happen to favor.

So people like Sunstein have to devise clever empirical studies to uncover bias--e.g. to see whether a judge's decisionmaking patterns correlate more with bias than with other, more acceptable factors. It's imperfect, but it's a start.

The alternative is to criticize decisions that seem so poorly reasoned that the authoring judge cannot have been in acting in good faith in deciding the case as he did.
11.2.2007 12:45am
Anonymous Coward #39841:
Cornellian asked:

how would you propose using that definition to separate the "judicial activism" decisions from the "non-judicial activism" decisions given that we never know what's really going through someone's mind?

Alas, I think the problem is, in general, undecidable. But at least in extreme cases, as anonVCfan mentions above, the judge's reasoning may be so muddled that it compels a conclusion of judicial activism.
Another approach would be to try to see if the judge is consistently following a coherent interpretative ideology. If a judge rules consistently, then there is less evidence of judicial activism.
11.2.2007 1:12am
Anonymouseducator (mail) (www):
I don't know how useful the concept is, but which issues a justice feels should be left to the states seems to say a lot. I'm not prepared to label it activism, but the inconsistency frustrates me.
11.2.2007 1:25am
Public_Defender (mail):
The term "judicial activism" is political rhetoric, not scholarly discourse. Conservatives initially used it as a rhetorical slur against anyone left of Justice Rehnquist. (I'm sure the term predated him, but you get the point.)

One goal of liberals over the past 20+ years has been to enlarge the term to include conservatives, and we have been pretty successful at that.
11.2.2007 6:48am
Another Commentor:
How about defining "judicial activism" as overruling precedent/stare decisis? Or, do you think this definition would either be politically biased or shorthand for incorrect decision?
11.2.2007 9:05am
markm (mail):
There's also "activism" in the opposite direction - justices stretching to find some justification for upholding laws that they like. It's hard to explain the decision upholding McCain-Feingold any other way, let alone Scalia abandoning his federalist principles in Raich vs. Gonzales.
11.2.2007 9:07am
Guest101:
I think Ilya is absolutely correct; I've yet to see a use of the term "judicial activism" in which its definition was distinguishable from "opinion with which I disagree/don't like." Miles and Sunstein do as good a job as I think can be done at coming up with an objectively quantifiable test, but the fact that they are forced to contort the term so far beyond its intuitive meaning is evidence that, as generally used, it simply lacks any helpfully meaningful content.

Another Commentor,
I think your approach overlooks the fact that sometimes precedent is wrong, and stare decisis is not necessarily a virtue if it compels a court to maintain the errors of the past. There's nothing activist, again as the term is generally/intuitively used, in overruling a prior precedent that reached an objectively incorrect conclusion. Moreover, regardless of objective correctness, a subsequent Court could disagree with the ruling of a prior one without the partisanship or policy preferences generally associated with the notion of judicial activism playing a role in the decision to overrule the prior decision.
11.2.2007 9:29am
Ben P (mail):

How about defining "judicial activism" as overruling precedent/stare decisis? Or, do you think this definition would either be politically biased or shorthand for incorrect decision?


As I recall there was a study in the 90%'s that used that as a metric to measure activism. And as I recall it found things similar to the Miles Sunstein study. (IE Ginsburg was "Activist" but so were Thomas and Scalia)

But I think it was also criticised on much the same grounds that Miles and Sunstein are, that is, those that use "judicial activism" to fit their own motives thought the authors had "altered the definition" by failing to include which decisions were "wrong."
11.2.2007 9:35am
Eli Rabett (www):
In AC's words (more or less:)

My understanding is that a judge commits 'judicial activism' I first determine what I want the outcome of the case to be (based on his own policy preferences, in defiance to those of the legislature), and then construct a legal argument to support the desired conclusion. (This is in contrast to the proper process of analyzing the legal issues and following them to whatever conclusion they support.)


Oh I appear to have changed a word or two.
11.2.2007 10:25am
Ralph Phelan (mail):
I've yet to see a use of the term "judicial activism" in which its definition was distinguishable from "opinion with which I disagree/don't like."

I'd say "judicial activism" is a subset of "opinion with which I disagree/don't like." Using the term is equivalent to accusing a judge of acting in bad faith of the variety described by Anonymous Coward #39841. This is different from an accusation of carelessness, stupidity, or having a generally incorrect understanding of the law.

It's obviously a tough thing to objectively "prove." That doesn't make it meaningless charge, but it may make it one of limited practical use.
11.2.2007 10:30am
Ralph Phelan (mail):
So people like Sunstein have to devise clever empirical studies to uncover bias
Or to declare results they don't like as by definition biased.

The issue is not whether/how often federal agencies are overruled, Congressional actions are struck down, or precedent is overruled. The issue is whether decisions appear to be based on the law as written or on desired policy outcomes. Merely by making the complaint of "judicial activism" on implicitly assumes an "originalist" or similar philosophy.

It's certainly possible for conservatives to ignore the law to get what they want while pretending otherwise, and its a case of hypocrisy when they do. And human nature being what it is, they surely will. What liberals have been doing for many years is quite different - claiming that it is right and proper for courts to think about politics and outcome more than they think about law and process. "Living document" "Evolving standards" etc.

For liberals to catch conservatives in instances of hypocrisy and loudly point it out is a perfectly legitimate "tu quoque." For them to claim conservatives do it more requires them to ignore their own stated political philosophy.
11.2.2007 10:44am
Daniel San:
Public_Defender:Conservatives initially used it as a rhetorical slur against anyone left of Justice Rehnquist.

Ahhhh, youth! Browse some old law journals from the 60's or the early 70's. Among the academy, "judicial activism" was primarily used as a positive term. A rough definition would be 'the judiciary's use of creative legal analysis to reach the right result for social change.' I think there was a consensus that the Warren Court was an activist court; the debate was whether activism was good or bad. The Right has won that debate.

Although I don't think there was ever a precise definition, I do think judicial activism was a useful term, at least in the you-know-it-when-you-see-it' sense. Unfortunately, I have to agree that it is no longer a useful term.
11.2.2007 10:48am
Rick Esenberg (mail) (www):
It may be that the term has been used in too many differing ways to be useful. The problem is that it is now in the common parlance and I am not prepared to say that it can't be given a coherent - if somewhat soft meaning.

Most judges would agree that they are to base their decisions on some source of authority other than their own preferences. That authoritative nature of that source ought to be rooted, at some point, in the consent of the political community and, at some point, be subject to alteration by that community.

Judges develop a series of techniques that are designed to keep them moored in these sources, i.e, beginning with the text (and ending there if its unambiguous), eschewing standards that provide little or no guidance,etc. While, as Ilya argues, you can say that there is a more precise term than activism or restraint for the source of these technigues and that "activism" represents a value judgment on other interpretive methods, I am trying to rehabilitate a term that the public actually uses and senses to mean something.

Judges differ in the extent to which they are committed to these techniques. An individual judge may embrace or abandon them based upon the outcome she prefers. Therein, I think, lies the core of activism v. restraint.

Looked at in this way, I suppose that you could say that there will be very few cases that can be safely characterized as "activist" and that may be so. I certainly find that to be the case, although I also think that the concept retains some value in talking about certain types of judicial decision-making.


Rick Esenberg
Marquette University School of Law
11.2.2007 10:53am
anonVCfan:
Kermit Roosevelt has a great book on the subject.
11.2.2007 10:53am
Ralph Phelan (mail):
Browse some old law journals from the 60's or the early 70's. Among the academy, "judicial activism" was primarily used as a positive term.

Specific citations, better yet links, would be much appreciated.

I think there was a consensus that the Warren Court was an activist court; the debate was whether activism was good or bad. The Right has won that debate.

Although I don't think there was ever a precise definition, I do think judicial activism was a useful term, at least in the you-know-it-when-you-see-it' sense. Unfortunately, I have to agree that it is no longer a useful term.


The term "judical activism" has become less useful due to deliberate obfuscation by those who lost the public debate on whether it's a good thing, but wish to continue using it anyway. Miles &Sunstein's work is an example of this strategy in action.
11.2.2007 11:00am
Anon. Lib.:
Does this mean that you recognize that the generations of conservatives who've ranted about judicial activism --- and charged so-called liberal activist judges with acting to thwart, in bad faith, the values of good, ordinary Americans --- have been making an incoherent claim? That would be something. If instead, you are saying that "judicial activism" is an incoherent concept after it has been demonstrated to you, by the best attempts to observe the phenomena, that conservative judges are among the most activist (and that could not possibly be, could it?), you are being inconsistent. Seriously, if Sunstein and Miles are so off-base (Miles, btw, is an Olin Fellow in Law and Econ and a former law clerk to Jay Bybee, not exactly a librul), what about the platform of the Republican Party, which expressly condemns liberal activists judges for turning the sound principle of judicial review into an "intolerable presumption of judicial supremacy?" Do you now agree that these claims enshrined in the Republican Party platform are incoherent?
11.2.2007 11:05am
Ralph Phelan (mail):
Anon lib - who are you addressing?

Anyway, you are assuming that Miles &Sunstein have actually demonstrated anything meaningful. I believe I have demonstrated that they have not. OK, assume it's a fact that businesses are more successful than NGOs at fighting the EPA in the supreme court. So?

Is the EPA after four years of Bush really "conservative" by any common-sense definition, or just "less liberal"? Unless this question is addressed, the results are meaningless.
If you grant that a Republican led EPA is "conservative",
then how is a business loss to the EPA a "liberal" victory? Isn't this rather a fight, not between liberal and conservative, but between different varieties of conservatives (libertarian versus authoritarian) and thus irrelevant to the analysis?

If you admit that the Warren Court was very active in a liberal direction for a long time, then won't there need to be a lot of work doen to put things right? Is it fair to treat undoing someone else's activism the same way you treat the problem being responded to?

Miles &Sunsteins "analysis" strikes me as one of those many cases where "social science" is used in the hopes that its the methodological smoke and mirrors will distract the audience from the implicit philosophical assumptions that really drive the conclusions of the work.
11.2.2007 11:24am
David M (mail) (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 11/02/2007 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
11.2.2007 12:35pm
CJColucci:
It has long been obvious that "judicial activism" has never meant much more than "I don't like it." For no good reason, however, here is an attempt at an ideologically neutral version of something "judicial activism" might mean that might also do useful work. One is a "judicial activist" to the extent that one is more inclined than other judges to think the judiciary ought to solve certain problems not explicitly or traditionally conigned to the judiciary for resolution. The Sunstein/Miles study is somewhat in this vein. Under Chevron, agencies ought to be given broad deference in interpretations of what their enabling statutes permit. Some Justices (White was one) seem to take this command seriously and grant a great deal of deference, even to agency decisions he would not call "correct." Other Justices do not, or they are inconsistent about it in suspicious ways, essentially deferring when the agency got it, from their point of view, "right." I think that would be a subset of something fairly called "judicial activism." I would agree with Prof. Somin that Kelo was not activist, but a judically-created doctrine designed to deal with the real problems Kelo revealed would be. Legislatures are better at that sort of thing. Roe v. Wade would be activist. So is the current 11th Amendment jurisprudence.
This is all a waste of time, of course, but I thought I'd give it a try.
11.2.2007 1:55pm
Daniel San:
CJColucci: It has long been obvious that "judicial activism" has never meant much more than "I don't like it."

Never is a long time. You may want to check out:
Ronald Dworkin, The Jurisprudence of Richard Nixon, 1972. http://www.nybooks.com/articles/10204 which advocates judicial activism in the sense of bringing practical moral judgment into Constitutional decision-making.
Arthur Selwyn Miller, 1982. Toward Increased Judicial Activism (Greenwood Press), is also interesting as a cautious advocacy of activism.
My memory tells me that Judicial Activism was largely seen as a positive thing in the academy in the 1970s, but I don't have access to a literature search.
11.2.2007 5:16pm
Libertarian1 (mail):
I've yet to see a use of the term "judicial activism" in which its definition was distinguishable from "opinion with which I disagree/don't like."



I am not an attorney. I will give a personal example refuting the above. In the recent Georgia statutory rape case, I totally agree with the decison. The punishment was ludicrous. However, the legislature and governor enacted a law specifically preventing the law from being retroactive. Since no one seemed to feel the new Georgia law was unconstitutional the Georgia Supreme Court decision was "judicial activism".

My personal definition is when in order to achieve "justice" or "fairness" the courts choose not to follow the letter of the law. Laws are enacted by the legislature and executive branches. if the results are not fair it is not a function of the judiciary to change the law.
11.2.2007 5:26pm
inactivist:
Well, of some of the attempted definitions out there -- being anti-majoritarian, being anti-text, being anti-precedent -- Roe sure hits the trifecta. If one jumps to the outcome of "just a result I like," it fits. If one uses the standard someone posted above, i.e., that the reasoning is so gosh-awful incoherent that no one could possible believe it, yup, got that, too. In fact, it deserves special mention for having spawned an entire cottage-industry of profs who like the result coming up with better reasoning, as Blackmun's schlock was just embarassing.

Yet our nomination and confirmation process -- the time when arguments about "activism" heat up -- has become all about Roe. Amazing.

More amazingly, the "conservative" nominees all play the game of being undecided on it, and the GOP presidents all have to swear that they're NOT using a litmus test. By contrast, the Dem presidential candidates all openly promise the litmus test.

As long as all of the above is true, I think yes, it is a useful term, and no amount of Scalia's purported hypocrisy on Raich can trump the absurdity of Roe and its place in the whole game.
11.2.2007 5:45pm
Toby:
I think the Georgia Case is indeed Judicial Activisim, and an example of which I aprove mightily.

I also see a whole lot of the temporal special pleading in this thread, as strange and aparantly politically motivated respect for stare decises that was never held by, for example, the warrent court. In a way, it strikes me as analogous to the fatuous arguments "I have free speech, and you are violating mine if you criticize it"

Juduicial activism describes something real. Like most of real life, it is not surrounded by a bright line - but a dark form in the middle of shades of gray. That does not make it unreal - and arguments from folks professing subtelty except when they don't like it are unconvincing.

Daniel San is exactly right, local Judges used to run for the bench with claims they would be activist. 1960's Democrats used to praise judicial activism. It is a word like Liberal, that used to be worn as a badge of honor. Doesn't mean it was right, then, but claiming it never existed is, well, shallow.

It is still usefull today. Like many things that are potentially a slur, it is also over-used. In particular it is over-used by those whose beliefs would have proudly claimed the term a generation ago.
11.2.2007 6:22pm
Michael B (mail):
If the point is there is no universally agreed upon normative basis for defining the concept, that's true enough. But that fact is not synonymous with the idea that it cannot serve substantive scholarly and political discourse. A concept is as useful as it is well defined and to the extent it serves substantial polities.
11.2.2007 7:22pm
Montie:
It seems unlikely that the term "Judicial Activism" originated as a pejorative. Are Political, Enviromental, Community, Civil Rights, or Labor Activism considered to be pejorative? Of course not. Moreover, in certain political circles (predominately on the Left), activism is the responsibility of every decent person, and no higher praise can be bestowed on an individual than to call him or her an activist. I would assume that many of people are still warm to the idea of Judical Activism.
11.3.2007 12:57am
Stewart:
Sorry, it's too cynical for me to define the term in terms of my own preferences. Judicial Activism is jurisprudence which is not supported 100% by law. Reasonable minds may differ on whether a particular case you disagree with represents Judicial Activism taken too far, an error of interpretation, a biased resolution of conflicting law, or simply a close decision swayed by the arguments. Personally, I believe that policy should be made by law, and judicial activism is generally wrong, but I'm not so pure as to reject the occasional activist court decision where bad or inadequate (in my own biased view) law is concerned.

Perhaps we're conflating two different activities with the term Judicial Activism - going beyond and opposing the text of the law. Intentionalists may not feel the former is in fact Activism. Is this where the uncertainty over the meaning of the term comes in?

As to the notion of elimination of judicial review, IANAL, so I may be missing the argument here, but this seems like throwing the baby out with the bath water. Altering the constitution was made difficult for a reason, and this seems so simple that it must be wrong, but the Judiciary exists as the third branch to make sure that the first two don't change it through legislation or executive order. Are they really proposing that this system be fundamentally changed?
11.3.2007 1:56pm
Rich Rostrom (mail):
ISTM that there is a non-incoherent four-part test for judicial activism. It is the use of judicial authority to

[1] bring about substantial legal or social change;

[2] in the absence of clear constitutional or statutory language mandating such change, or in apparent contradiction of the applicable language;

[3] where the policy outcome is the personal preference of the judge or judges;

[4] the change is something that would logically be enacted by the legislature or administrative authority, or the amendment processs.

Roe v. Wade is an obvious example of this, as are Griswold v. Connecticut, Lawrence v. Texas, Roper v. Simmons, Goodridge v. Department of Public Health, and Dred Scott v. Sandford.

KELO v. City of New London is not. It changed nothing, and the Constitutional question isn't obvious.

Not all four parts may be prominent in every case. In Brown v. Board of Education, parts 1, 3, and 4 are present, but there is a reasonable case that part 2 is contradicted (the 14th Amendment basis). Against this is the magnitude of the change that was imposed. It might be argued that Brown is legitimate judicial activism, because the Court merely required the legislature and administrators to do what the Constitution pretty clearly requires, a duty that was illegitimately evaded by them and by previous Courts.

I further STM that parts 1 and 2 can balance or combine: if [1] is small, but [2] is huge, that's a hit; but if [2] is negative (i.e. the language supports the court), that can offset a big [1]. (Then the question arises, if the language supports the decision, why is the decision a change?)

Likewise [2] and [3]. [4] is also a possible contributor, but not required, if the other parts are met.
11.3.2007 4:20pm
Larry Fafarman (mail) (www):
Stewart said,
Perhaps we're conflating two different activities with the term Judicial Activism -- going beyond and opposing the text of the law. Intentionalists may not feel the former is in fact Activism. Is this where the uncertainty over the meaning of the term comes in?

Exactly. Judge John E. Jones III asserted in his written opinion in the Kitzmiller v. Dover intelligent design case that he was not an activist judge, but he said in a Dickinson College commencement speech that his Kitzmiller decision was based on his notion that the Founders believed that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that "true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry." At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things," to secure their idea of religious freedom by barring any alliance between church and state."

So the Kitzmiller decision was obviously an "activist" decision because Jones crossed the line from neutrality towards religion -- the establishment clause's position -- into hostility towards religion. Regardless of whether or not intelligent design is religion, this hostility towards organized religions meant that he was prejudiced against the defendants. But because he thought that he was following the intentions of the Founders, he did not see himself as an activist judge.
11.4.2007 12:47am