re: Who’s More Activist?

My friend max is understandably struggling with the definition of “activist” judicial decisions, especially as framed by Jeffrey Toobin. Max begrudgingly identifies activism as in the eye of the beholder, depending on one’s preference for the proposed policy outcome.

I think max is fundamentally correct, but I would put a slightly different twist on the matter. There are certainly those, like Toobin, who view judicial activism as the court overturning a democratically determined law or rule. By that definition surely the court’s “conservatives” and “liberals” (what those terms really mean is grist for another post) are both guilty of activism.

However, the primary criticism of activism is not the act of overturning laws per se, but rather the act of overturning laws (or failing to when necessary) without the benefit of adequate constitutional imprimatur. In other words, a decision is an activist one, whether or not a law has been overturned, when the court has found something in the Constitution that isn’t there or has failed to find something that is clearly written. Infidelity to the Constitution is activism.

However, of course, max’s point remains correct. After all, whether or not one considers an opinion faithful to the Constitution is often, unfortunately, a matter of whether one approves or disapproves the policy outcome.

A more appropriate perspective is to view the constitutionality of a law not through the prism of a preferred policy outcome but rather on whether the court used permissible judicial interpretive methodology to determine whether the law was, in fact, constitutional. Under an “anything goes” philosophy of many judges (what they call “living constitutionalism”), courts lose the ability to interpret the constitution correctly or meaningfully because by unmooring the document from its foundations, it may easily float away (to mix a host of metaphors). An original meaning approach, on the other hand, is probably the one least subject to (although not entirely immune from) the dangers of interposing personal proclivity or policy preferences onto the constitutional matrix.

Under that view, the 3 cases cited by Toobin are all faithful to the Constitution and are therefore not activist decisions, although they overturn existing law. I would view Roe and Lawrence, on the other hand, as the epitome of activist judging, what they used to call legislating from the bench, because they both defy the Constitution, inserting imaginary rights where none exist in order to remove choice from the democratic populace. It is not the striking down of laws that is activist; it is contempt for our foundational legal document.