Peter Lawler responded to my post on judicial activism with two new posts. In the first, he suggests that there is an “amoral or merely behavioral definition of activism” which is satisfied any time that a court substitutes its will in the place of the legislature, whether correct or incorrect. As an initial matter, while judicial activism is not a term of art and has been used in many different ways, Lawler’s definition is not the common understanding of the term. As I suggested previously, the “striking down laws” definition of judicial activism is one that left-wing professors like Cass Sunstein are trying to perpetuate, because if the term “judicial activism” is neutral, then it loses its power as a pejorative. Judicial activism has generally been used in popular parlance to describe “judges behaving badly”--a negative description of judges who are functionally legislating their own policy preferences from the bench. This is why someone like Adam Cohen screeches that the Roberts court is “activist.” He doesn’t do so because the term is neutral, amoral, or a behavioral definition, but rather to malign the court.
This is why it is dangerous for someone like Professor Lawler to use the term “judicial activism” to describe correctly applied judicial review. This gives ammunition to those who think that all judging is simply applying personal preferences, and who assert that when conservatives strike down a law based on what the Constitution actually requires, it is really no different than when liberals do so based upon extra-constitutional “this is my view of what is the best policy” principles. And so, while Professor Lawler belittles as simplistic Federalist 78’s distinction between willfulness and judgment, it is this simplicity that keeps us from the conclusion that one man’s Brennan is another man’s Scalia.