I Am Abandoning the Term "Judicial Activism"

I had an interesting discussion with my father-in-law about the term "judicial activism" which has led me to eschew the term.  Here's the reason:  He made the observation, I think from a story on NPR, that though conservatives seem to complain the most about liberal activism from the bench, in fact majorities of conservative judges on the Supreme Court have struck down more laws than their liberal counterparts.  It was the striking down of laws they considered "activist".

After thinking about this for a moment, it made me realize that he, and I guess NPR, used the term judicial activism differently than I do.  As a fairly strong libertarian, when I have referred negatively to judicial activism, I generally am thinking about judicial decisions to create new powers for the government and/or, from the bench, to put new restrictions on individual behavior.  In that sense, I think of decisions like Raich to be activist, because they sustain expansions of federal and government power.  As I have listened to both liberals and conservatives now, I realize that my usage of judicial activism is, ahem, out of the mainstream, and therefore confusing.  My personal concern is how the courts have ignored the 9th amendment and thrown the commerce clause out the window. 
I have decided that, as most people use the term, I am neutral to positive on what the majority refer to as judicial activism.  I think a lot more laws should be thrown out as unconstitutional, and if
this is the accepted definition of activist, them I like activism.  For example, I wish they had been more active in striking down laws and government activities in Raich and Kelo

Until I come up with a better term, I now describe myself as being against judicial expansion of federal power.  Maybe I can coin the term "judicial expansionism"?


  1. Jody:

    Actually, you're not out of the mainstream. That definition was not used for an activist judge until this NYT Op-Ed on July 6 (very recent). (http://www.nytimes.com/2005/07/06/opinion/06gewirtz.html)

    Here's the opening of that op-ed:

    "WHEN Democrats or Republicans seek to criticize judges or judicial nominees, they often resort to the same language. They say that the judge is "activist." But the word "activist" is rarely defined. Often it simply means that the judge makes decisions with which the critic disagrees.

    In order to move beyond this labeling game, we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

    Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?"

    As the authors acknowledge, the definition your father-in-law provided was a criteria identified by the authors this summer. Seriously, I never heard that definition before that op-ed and now I hear it all the time from liberals. I believe this is entirely because this new definition blunts the criticism of conservatives who weren't up on the meaning of activist judge.

    For years, libertarians and conservatives used the term "activist judge" to refer to a judge who takes an active role in the legislative process. By redefining the meaning of the laws or the Constitution, judges take an active role in the legislative process. This is also why activist was traditionally used in contrast to an originalist judge. Even wiki's definition of an activist judge supports this meaning: (http://en.wikipedia.org/wiki/Judicial_activism)

    "The phrases "judicial activism" and "activist judges" in the United States, Australia, Canada and other countries with common law systems, are political epithets that refer to judges who are alleged to exceed their authority. A judge is considered activist when he or she uses the power of judicial review to overturn laws or articulate new legal principles without sufficient precedent, especially for purposes of shaping government policy."

    The rest of the wiki discussion is on the contrast of an originalist and an activist judicial philosophy.

    Since most conservative jurists tend to be originalists, over the years liberal judges have been rightly bludgeoned with the term activist (judicial activism in the traditional sense makes a mockery of being a nation of laws) (also activism/originalism shouldn't be a liberal/conservative thing, it just happens to be that way now).

    In the hope that muddying the waters will confuse the critics of judicial activism and lift the heat on bad judges, liberals are now (from July 6) asserting a radically different definition of judicial activism.

    The word activist had a clear meaning, and now it's being twisted to mean something very different. Don't abandon the term judicial activism. It means what you think it does.

    To wit: We're currently experiencing an "activist" redefinition of the word "activist" to further a liberal social objective.

  2. DaveJ:

    What Jodi said.

    Well, I was coming to point out the same thing, but Jodi did a much better job.

    FWIW, my own preferred definition of the term is perhaps best illustrated by examples. In general, any 'court ordered' activity by the government is likely to be activism. Forced busing of students was judicial activism. The Florida SC rewriting election law was judicial activism. Kelo was not activism, it was just wrong.

    Striking down laws, telling the other branch(es) 'you can't do that' is not ever activism, it is the proper role of the judiciary and how it balances the legislative and executive branches.

    Don't ever let anyone get away with telling you that judges simply doing their jobs are activist by definition.

  3. honestpartisan:

    What revisionism here! The textbook pejorative uses of "judicial activism" referred to Griswold v. Connecticut, Roe v. Wade, the School Prayer decision, etc. by the Right, and frequently the Christian Right, with the complaint that courts were foreclosing the political process. If you want the term "activism" to have any meaning besides "conservative", then the only consistent definition is the one from the New York Times article.

    After all, if there were no courts, they wouldn't be doing anything at all -- i.e., being "inactive". If you want courts to overturn eminent domain schemes and congressional regulation of marijuana, then you want courts to play an active role.

    And by the way, the "Constitution in exile" movement -- libertarians who want courts to use the commerce clause and the takings clause to strike down economic and environmental regulations like Richard Epstein, for example -- embraces the "activist" label.

  4. Jody:


    Before this month activism didn't mean liberal or conservative (though it had recently come to be associated with liberal jurists), it was a judicial philosophy by which the courts intepret the law in manner that is inconsistent with the original intent of the writing in the Constitution or the original intent of a law. I'm not the one changing meanings here. Read the links I provided (and note again that the NYT article is introducing a new metric, i.e., it's a new definition).

    As such, activism can be fairly characterized as the opposite judicial philosophy of originalism. Perhaps part of your difficulty with the concept is the fact that most judges fall in between being a pure originalist and a pure activist with Thomas being the purest example of an originalist.

    Further, as your example makes clear, activism meaning the opposite of inactivism is devoid of any useful meaning (per your example any court in existence would be "active" making an inactive court a logical impossibility), so ok it's consistent (as is the activism in opposition to originalism definition), but it's virtually worthless in terms of describing judicial philosophies.


    Thanks for the compliments. If I may disagree with some subpoints of yours, Kelo was activist in that the decision rests on a reinterpretation of the takings clause. See my discussion of the case here (http://polyscifi.blogspot.com/2005/06/why-kelo-is-such-bad-decision.html) here (http://polyscifi.blogspot.com/2005/07/why-i-want-originalist-for-supreme.html) and here (http://polyscifi.blogspot.com/2005/07/creative-procrastination-and.html)

    As far as Courts ordering the government to do things, sometimes that's not activism. As most of the Constitution prescribes limits on government power, you rarely get a non-activist court order on Constitutional cases. However, if the Legislature passes a law/amendment saying that the government will do X and the Executive fails to do X, then a court order (to be technical, a writ of mandamus) that requires the Executive to do X is not an activist decision. They are merely ensuring that the law of the land is upheld, not writing new law.

    The scenario I describe is so rarely encountered that I understand your confusion. I think your description of the Court ordering the government to do things would actually neatly fall under coyote's use of "judicial expansionism". However, I believe that judicial expansionism has traditionally meant the expansion of the powers of the judiciary, like how Marbury v Madison is typically understood.

  5. honestpartisan:

    Jodi: the problem with your definition of activism as the opposite of originalism is that a proper interpretation of the original intent of the framers is subjective. You can take the position that courts disagreeing with your intrepretation are "activists", but that puts you in the awkward position of arguing that no one with a different interpretation from yours is reasonable. To avoid such a politicized meaning of the term, "activist" ought to mean what it really sounds like, and what the Constitution-in-exile crew agree that it means.

    And incidentally, courts all the time refuse to get involved in various matters, stating that they don't have the jurisdiction to do so. That may be right and it may be wrong, but it's a restrained view to take, not an active one. Courts refusing to exercise their institutional prerogatives to overrule what other branches do (in Kelo and in Raich, for example) aren't being active at all.

  6. Jody:

    Pefection is the enemy of the good.

    Is defining original intent a subjective process? Yes. But that's because we're trying to make a value judgement on the actions of the Court. Judging whether something is good or bad is always subjective.

    Is the NYT definition objective? Yes. But it's worthless.

    The simple action of the Court overturning an arbitrary law is neither a good thing nor a bad thing. Whatever value we might be able to attach to a decision to overturn a law is firmly rooted in the specifics of each case.

    If a law is overturned, then it means one of two things: 1) The Legislature/Executive branches misunderstood the Constitution (I include Executive as while a law could've been passed over veto, this situation represents an extremely small percentage of laws particularly in the pseudo-Parliamentary style that we've evolved to) or 2) the Judicial branch misunderstood the Constitution. (I can conceive of scenarios where both branches f' up, but I don't know of a time where that happened with a law being overturned).

    But the NYT metric can't possibly address this issue. It merely observes the fact that the law was overturned without saying the overturning was a good thing or a bad thing.

    By completely ignoring the specifics of the cases, the NYT metric is devoid of meaning. Unless one believes Judicial Review is a bad idea (then less "NYT activism" is better) or if one is an anarchist of sorts and wants every law to be overturned (then more "NYT activism" is better). However, I believe that there's consensus (left and right) that a) the Court should have the power of Judicial Review and b) the specifics of a case makes all the difference in determining if a decision is a good one.

    So what makes for a good decision or a bad decision? We could see if the outcome matches our political philosophy, but that's quite subjective as what's "conservative", what's "liberal", and what's "moderate" varies from person to person as everyone has their own political philosophy. Indeed this super wide variance in interpretation will be true for any outcome based valuation. Instead, a more procedural metric is needed.

    So let's return to the use of activist to mean not being faithful to the original intent of the Constitution or a law. Implicitly, this makes a value judgment of Mo originalism, Mo Betta (Mo Butta). I'll not go into why I'm such a big fan of originalism, but you can read a long discussion of why I place a high nonpartisamn value on originalism here: (http://polyscifi.blogspot.com/2005/07/why-i-want-originalist-for-supreme.html)

    Now while you are right that determining what is original intent is somewhat subjective, it's much less subjective than an outcome based valuation. For recently passed laws, we have public statements to go on. For more historic laws/amendments, we have ... public statements to go on. If you read a Thomas opinion, it typically has 10-15 pages just addressing the history of what various people involved in making the law thought it was intended to do. So while I'm sensitive to the idea that determining original intent is subjective, I view it as no more subjective than the field of history.

    So is the activist/originalist metric perfect? No. But it's pretty good.

  7. Billy The Blogging Poet:

    I've always considered the term, activist judge, to be in-fact the perfect example of an oxymoron.

    The term, activist, implies that one be proactive in taking on a cause, ie: Right to Life Supporters protesting an abortion clinic or Environmentalists chaining themselves to trees to prevent clearcutting.

    Judges are allowed to do neither of these things from the bench. As a matter of fact: if a judge witnesses a crime on the street all that judge can legally do is call the police just like you and I. And if the crime he reported comes before his court then that judge must recuse himself from that trial allowing it to go before a different judge.

    Activists are proactive in their efforts. Police may be proactive-- setting up speed traps-- or in the case of catching bank robbers, reactive. Judges are required by law to remain reactive, being allowed only to act when a case is brought before them. Judges cannot go out looking for cases to act upon and therefore cannot be activists.

    The term activist judge is just another term bandied about by politricksters in their efforts to fool the people. Are you fool enough to fall for their tricks? ;-)