The Politics of "Judicial Activism"

Atrios writes:

I'm Not Sure What Judicial Activism Is

Even when their side does "it," I still think it's a very poor term which most of the time means "rulings I don't like." There are judges who are more or less deferential to the other branches, and there are judges who are total hacks who will contradict themselves across rulings, or make absurdly stupid arguments, in order to achieve whatever political/policy ends they want to achieve, but "judicial activism" is a bad frame which suggests that it's somehow illegitimate for the judiciary to act. Call out the hacks for being what they are, but don't call them "activists."

(Emphasis supplied.) I'm sympathetic intellectually to Atrios' point. but the context of the historic use of the term "judicial activist" as a pejorative, which arose in response to the Warren Court's series of decisions on individual liberty, makes the phrase a potent political weapon for progressives attempting to hold back the attempted radical conservative judicial counterrevolution. It would be naive for progressives to discard it now. More . . .

What does "judicial activism" mean? Stated objectively, it means the judiciary overturning actions of the other two branches. The first "judicial activist" was Chief Justice John Marshall, who declared for the Court in Marbury v. Madison that:

It is emphatically the province and duty of the Judicial Department to say what the law is.

Obviously, in so doing, courts will sometimes decide that the actions of the Legislative and Executive branches (and the States) run afoul of the Constitution. When doing so, the courts will be "activist."

The general rule is for courts to presume constitutionality, and indeed, interpret laws in order to avoid constitutional conflict, in an effort to not be "activist."

In reality, judges do what they like, honoring the principle of "judicial modesty" more in the breach, than in practice. Yes, I am a Legal Realist, in the sense that I believe this best describes what happens in our courts.

Thus, my view of the judiciary is that it is another political actor on the stage. As a political actor, I believe in using political methods to attempt to affect its actions.

Describing the attempted radical conservative counterrevolution in the courts as "judicial activism" strikes me as an effective political means to affect the actions of the courts.

Because of this, I think the White House's response to Judge Vinson's ruling on the health bill is good politics. I disagree with Atrios' "honest broker" stance with regard to this point.

Speaking for me only

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    I don't see judicial activism (none / 0) (#1)
    by ruffian on Wed Feb 02, 2011 at 10:00:54 AM EST
    as decisions I don't like. As you define it, I would say there is judicial activism I like and judicial activism I don't like.

    As a pejorative, "judicial activism" (none / 0) (#2)
    by Peter G on Wed Feb 02, 2011 at 10:11:33 AM EST
    means more than "the judiciary overturning actions of the other two branches." In fact, I don't think I've ever heard the term used in that neutral or "objective" way. Sometimes, as Justice Marshall established, judicial invalidation of executive action or of legislation is exactly what Article III requires in our constitutional scheme of "checks and balances." When a judge does this -- after attempting to exercise the "judicial modesty" that comes from acting on behalf of the non-representative Branch -- s/he is being "active" in his/her role, but I would never say the judge was being an "activist." Given the modern history of the term, as you correctly describe it, BTD -- originating in the backlash against Brown v. Board of Education, and then extending to describe some of the Warren Court's constitutional criminal procedure decisions -- I think "judicial activist" is today always a pejorative.  If it has a neutral or objective meaning it describes a judge who is pretending to perform the proper judicial review function but is in fact ("objectively") overreaching that role, typically by sneaking his/her own views of good policy into the decisionmaking process.

    "Unelected judges" (none / 0) (#3)
    by Big Tent Democrat on Wed Feb 02, 2011 at 10:28:13 AM EST
    means what to you exactly? I disagree with your description of how the term has been used.

    "Unelected judges" is also a pejorative (none / 0) (#6)
    by Peter G on Wed Feb 02, 2011 at 10:49:29 AM EST
    Federal judges are appointed for life, rather than elected, to ensure their ability to perform the judicial function we have been describing, even when it is unpopular.  The expression "unelected judges" is used only as a rhetorical device to delegitimate judicial action, when the speaker opposes the result.  Its use is intended to imply to the uninformed that judicial action would be entitled to more respect if the judges were elected, when generally the opposite is true.  Bottom line, of course, I am agreeing with you about the validity and propriety -- as well as the political effectiveness -- of using the term "judicial activism" to describe conservative ideological decisions, when they are "objectively" contrary to accepted norms of judicial reasoning -- such as Judge Vinson's ACA decision, or Citizens United (the corporate "free speech" election funding case), for example.  

    You miss my point (none / 0) (#7)
    by Big Tent Democrat on Wed Feb 02, 2011 at 10:53:31 AM EST
    The contrast is between "unelected judges" and elected official in the Presidency and the Congress.

    To wit, judicial activism refers to unelected judges replacing their judgments with those of elected officials.


    That's a much better way of putting it (none / 0) (#8)
    by Peter G on Wed Feb 02, 2011 at 11:00:40 AM EST
    than the version in your original post, which I was trying to critique a bit.  "[J]udicial activism refers to unelected judges [substituting] their judgments [for] those of elected officials," rather than sincerely (and properly) testing the representative branches' actions against the limitation imposed by the Constitution.  I'm fine with that.

    Peter (none / 0) (#11)
    by me only on Wed Feb 02, 2011 at 01:15:50 PM EST
    I see both sides on this one.  The term judicial activism was coined because of the Warren Court and extending to the Burger Court.  It was directed at the idea that the laws being overturned were long established and that the constitution had not changed, but all of sudden these laws were now unconstitutional.  Like Brown, but also Miranda and the death penalty and all the work to one man one vote.

    (This is unlike the rulings in the '30 which overturned the New Deal.  Those laws were less than 10 years old.)

    However, today the term really is used to describe any overturning of law that the person speaking it doesn't like.  It even seems that people use it to appear more knowledgeable about the subject than they really are.


    I tend to agree with Atrios on this one. (none / 0) (#4)
    by Maryb2004 on Wed Feb 02, 2011 at 10:41:54 AM EST
    I don't see how using it will affect the actions of the courts in any way. But it feeds into that whole "judges should only call balls and strikes" malarky as far as the general public goes.  I'd like to see it go away too.

    Judges do not follow elections (none / 0) (#5)
    by Big Tent Democrat on Wed Feb 02, 2011 at 10:43:14 AM EST
    is your argument? I think history has proven this to be false.

    I understand your point (none / 0) (#9)
    by Maryb2004 on Wed Feb 02, 2011 at 11:03:04 AM EST
    but I think on balance  the possibility that the use of a particular pejorative term would set up a roadblock against a set of idealogical right wing extremist judges is outweighed by the harm done by the use of the particular term on the public's perception of judges.

    If all judges are activist judges (and they are) and "activist judge" is a pejorative term, then the opinions of all judges are treated pejoratively.   I don't see that as good for the legal system.  

    I'm still thinking about whether calling them right wing results oriented political hacks is any better. It's certainly a better description. All judges are "activists" by the nature of judging.  Are all judges hacks?  


    The first 'activist judges' were in FDR's day (none / 0) (#10)
    by SeeEmDee on Wed Feb 02, 2011 at 12:28:30 PM EST
    The 1937 battle between the Supreme Court and FDR, wherein they had blocked everything FDR was doing as being unConstitutional and he threatened to increase the number of judges by installing his own supporters amongst them to out-vote them, is where the Supremes blinked and began to pass just about every bit of legislation they had previously obstructed.

    This has been going on for a very long time...

    The term is effective politically when courts (none / 0) (#12)
    by BobTinKY on Wed Feb 02, 2011 at 03:07:25 PM EST
    "enact" as the rule of their decisions laws that most people don't like.  While the most controversial rulings of the Warren Court & early Burger Court to me have, for the most part, proven resilient over time (that only real measure of judicial "correctness), politically at the time they played into the GOP's hands.  Hence, today's backlash which his the result of over thirty years of GOP rule & court packing.

    Should the Court do away with no more pre-existing conditions, coverage of dependent children up to age 26, removal of limits on lifetime coverage etc then I think the term will be an effective weapon for liberals to attack conservative rule.  But what a price.

    It remains infuriating that a more pro active Govt role in providing health insurance would not only have provided for more affordable coverage, but also would have served to insulate the legislation from judicial attacks. But Obama, more than any other party involved, nixed it.