The recent blogospheric debate over the meaning of "judicial activism" has been paralleled by a debate on the "conlawprof" list serve. Kermit Roosevelt (Penn) has kindly allowed me to post his comments there. They are characteristically thoughtful and informative:
The conventional meaning of “activism” in political rhetoric is basically “deciding cases based on personal policy preferences rather than law.” I have some sympathy for the attempt to redefine the term a la Ringhand and Gewirtz, but in the end I don’t think this will be helpful. Activism is supposed to be bad, and a redefinition that loses that element is not giving us a more precise or useful definition; it’s offering an entirely different concept.
This is not to say that the term “activism” is useful either. If you look at its uses in political rhetoric, you’ll see it’s generally just an embellishment on the assertion that the speaker disagrees with a decision—an unsubstantiated claim that the decision is not only wrong but somehow improper. Indeed, it’s worse than useless. It’s harmful because unfounded and overbroad assertions that judges are behaving politically tend to corrode respect for the judiciary and, ultimately, the idea that law is more than politics. (That is, because the charge of activism in practice is usually motivated by political preferences, its dominance in discussions of the judiciary leads people to think about judicial decisions in terms of those preferences.)
In The Myth of Judicial Activism, a book just published by Yale University Press, I argue against the term and try to offer a more useful replacement. I suggest that we can achieve most of what the term “activism” purports to do—that is, identify judicial decisions that are improper exercises of judicial power—by asking whether the Court has employed an appropriate level of deference to the government actor whose performance it is reviewing. Decisions that use an appropriate level I call legitimate; those that don’t I call illegitimate.
My hope is that instead of charges of activism (which are intelligible to the public but worse than useless in terms of reasoned debate over Supreme Court decisions) or painstaking analysis of doctrine (which is useful but unintelligible to the public) we can discuss whether the level of deference is appropriate. This requires a theory about which factors make deference appropriate and which make it inappropriate. I try to sketch such a theory in the book, which builds on an account developed in my article Constitutional Calcification, 92 Va. L. Rev. 1649 (2005). (That article itself builds on work by others, notably Richard Fallon and including Mitch Berman’s excellent Constitutional Decision Rules, 90 Va. L. Rev. 1 (2004), which I heartily recommend to anyone who has not yet read it.) The relevant factors and their relative significance are certainly debatable, but I think the debate is more likely than most in con law to be productive. (For instance, it could at least promote consistency by making plain whether one approaches the question of deference the same way in different contexts.)
In terms of evaluating decisions, the deference-based approach produces a two-by-two grid: the Court can defer or not defer, and deference is appropriate or inappropriate. If we’re interested in labels, I think we might fairly call a refusal to defer when deference is warranted activism, though this still doesn’t match up precisely with ordinary usage. Appropriate deference I would call restraint; an appropriate lack of deference might be independence. Excessive deference might be abdication.
We can also assign labels to famous cases about which consensus exists, and that exercise might help identify factors and suggest their relative importance. According to conventional wisdom, I would say, Lochner is activism; Brown is independence; Plessy is abdication; Carolene Products is restraint. And based on the data we derive from these cases, or from more general a priori theorizing, we can then try to figure out where to put cases like Lawrence, Roe, Kelo, Hamdi, and Roper. I think that this sort of analysis might actually be useful to the general public. As I perform it in the book, it suggests that the Court’s decisions are very seldom activist or otherwise illegitimate, but of course that conclusion is open to debate.
Roosevelt's book, The Myth of Judicial Activism, will be featured on an upcoming Legal Theory Bookworm, but you can buy it now!
