Strengthening Constitutional Self-Government

No Left Turns

More on Conservative Judicial Activism

While I certainly agree with Lawler’s earlier post insofar as it makes clear that Adam Cohen’s article in today’s NYT was a train wreck of logic (i.e., Cohen complains in one breath about the activism of the Supreme Court striking down laws, then in the next about the fact that the court did not strike down the federal partial-birth abortion statute, and then in conclusion referred to striking down a federal statute as "the ultimate act of judicial activism"), I am not sure that I would agree with Lawler’s conclusion that the Supreme Court’s decision striking down Louisville and Seattle’s non-remedial use of race was "somewhat activist." I am not sure how he reaches that conclusion, but it would seem that to do so in some way accepts Cohen’s premise that when courts strike down a statute, that is activism. Now, I don’t mean to ascribe this theory to Lawler if it is not what he meant, but it should be noted that this is an increasingly common understanding of what constitutes "judicial activism"--one which does not reflect what the term “judicial activism” generally has been understood to mean.

As I argued here, there is a movement promoted by University of Chicago professor Cass Sunstein and the left to define judicial activism simply in terms of striking down federal statute--a move which permits them to ignore the hundreds of state laws struck down by the Warren Court, and to proclaim the Rehnquist (and now, Roberts) Court as the most activist in history. Of course, this is a thin view of judicial activism--one which could oddly count as an example of judicial restraint a decision upholding a clearly unconstitutional law based solely on the policy preferences of the deciding judge. Such a view does not comport with the general understanding of "judicial activism," which traditionally has been used as a pejorative to describe when courts flip Hamilton’s description of judicial power from Federalist 78 on its head, and exercise WILL instead of JUDGMENT. The simple exercise of judicial review, in this case of a non-remedial program that counts by race for the sake of counting by race in violation of the Fourteenth Amendment, does not meet that definition.

Discussions - 4 Comments

The amoral or merely behavioral definition of activism is whenever the Court acts to substitute its will for that of the legislature. Now its will may be based on a correct judgment concerning the meaning of the Constitution, but the Federalist 78's radical distinction between will and judgment seems deliberately simplistic or rhetorical. Now activism is not all bad, it goes without saying. I've defending BROWN more than once on this screen, and that was big-time activism. But we can't deny the fact that the Court actively altered an important aspect of local policymaking in the recent decision.

"Activism" in the judicial context is a new ruling (not in deference to precedent), in line with a judge's ideological predilections, that is based on one of two things: 1) an ill-justified reading of the Constitution or statute; or 2) public-policy arguments, or philosophical principles, with no reference to the black-letter Constitution or law in favor of -- at best -- some "spirit"
as understood by the judge.

"Activism" does not mean "controversial" or "against precedent." If we accept such a definition, explicitly or implicitly, we are unilaterally disarming.

It's hard to defend the Brown v. Board opinion (as distinct from the holding) while opposing judicial activism. Brown was activist, and it set the stage for half a century of activism that may end up strangling this republic.

The recent "desegregation" -- can't we just say, "reverse-discrimination" -- rulings might be considered activist IF we argue that there was no adequate basis for them in the Constitution AND no basis for them in precedent, e.g. Brown. They are not "activist" simply because they invalidate public policy determined by supposedly (or actually) democratic means in Seattle and Louisville. The "activism" there would be the anti-constitutional reverse-discrimination policies of the local boards, not the controversial ruling by SCOTUS.

I'll take your two postings in the last week (7/6 and 7/9) as a direct answer to my previous and first ever comment on 7/2 requesting the satisfaction of our natural longings to hear from you more frequently... to which, by the way, Peter suggested a particular vice might explain your absence from these pages of late. He jests in vain. I know I'm not your writing's only fan, Mr. Alt, although it is entirely possible that I could be the truest and bluest. Keep it coming.

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