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Tuesday, October 03, 2006 

What is Judicial Activism?

Judicial activism is largely a myth. That is the point put forth by Kermit Roosevelt (who has a very interesting name) in a new book and in this opinion piece in the LA Times. Roosevelt points out that perceived judicial activism has been around for a long time...
In one form or another, the specter of activism has been with us for almost as long as we've had judges. It's been raised by both conservatives and liberals, in patterns that tend to alternate depending on whose legislative programs the courts are interfering with. (In the first half of the 20th century, it was the liberal Progressives and New Dealers who shrieked the loudest about it. For the last few decades, we've heard mostly from conservatives, but that is starting to change.)
Judges have always been cursed at for their decisions, decried as being activist or legislating from the bench. Putting a concrete definition on what is meant by "judicial activism" is difficult. Roosevelt acknowledges a paper by Prof. Lori Ringhand (which I posted about here) that tried to define and measure judicial activism. Many liberal commentators were on it like flies on crap because it painted the conservatives of the Rehnquist Court as the biggest activists. Roosevelt points out the flaws in Ringhand's argument...
Judges are activist, Ringhand suggests, when they vote to strike down state or federal laws, or to overturn a prior judicial decision. This definition is useful because it is objective; it takes away the "I know it when I see it" obscurity of much activism talk. But precisely because it is objective, it's missing an important part of its meaning. Activism is supposed to be bad, but voting to strike down some laws (unconstitutional ones) is not bad; it's the judge's duty.
Emphasis added. That's the problem that I have always had with empirical attempts at quantifying judicial activism, as if it was a batting average or and ERA. Suppose Congress passes a law that says Catholicism is the state religion of the US, and then the Supreme Court strikes it down. Are the Justices being "activist" or are they just doing their jobs? By Prof. Ringhand's system, that would still be a tally in the activist column for each Justice that voted to strike down the law.

Roosevelt then attacks the term itself...
No one can even agree on which decisions count as activism. And the term is not merely useless, it's harmful. Because it is almost always used for political effect, it encourages people to think about judicial decisions in political terms and to denounce ones that don't fit their politics.
I've felt that the majority of the people who use the term "judicial activism" use it as a substitute for "a decision I disagree with." It's an outcome judgment. That's why we can have studies like Prof. Ringhand's that count cases and assign scores. If you want to get at the meat of the issue, you have to look at process. You have to look at the individual cases and closely examine the reasoning of the judges. It's not the end result, it's how they got there.

Is the term completely useless? Not according to Roosevelt...
Abandoning the word has been suggested before. The problem is that doing so seems to leave us without a way of registering disapproval of inappropriate judicial decisions. This is something we need to be able to do.
I disagree with him here. I think the term has become so abused that it is useless. It elicits a visceral reaction from me everytime I hear it. I wince when I hear people I agree with using it. Its presence automatically weakens an argument in my mind.

I have come up with my own term: judicial dereliction of duty. It's not meant to be a substitute for judicial activism. Judicial dereliction of duty is reserved for instances of flawed process and flawed judicial decision making. It goes far beyond the "I don't agree with the results" view. The judge has to have acted improperly in some way (for example, deliberately misreading a line of precedent to achieve a different result). Reasonable minds can differ on statutory and Constitutional interpretation. There is nothing wrong with two judges not agreeing. But it is improper for judges to step outside of their traditionally defined roles, abusing their power to achieve personally desired results via a flawed judicial decision making process.

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