The notion of judicial activism.
My name’s on the sidebar now, so I feel obligated to offer a brief response to E.D.’s post on judicial activism.
E.D. writes: “The whole notion of ‘activist judges’ is essentially a ruse.”
Perhaps it’s the grammarian in me being too attentive to the word “essentially,” but, if taken literally, this claim is that no one who holds publicly that judicial activism is a bad thing is arguing in good faith. As one who holds that judicial activism is a bad thing, I’d like to try to explain what people who sincerely worry about activist judges are really worried about. Obviously, almost any position whatsoever can be used as a ruse, but to show that a position is in essence a ruse, the position must be so ludicrous that no other explanation for someone’s holding it suffices.
Given that our legal system rests on an extremely complicated web of precedents and subtle, hair-splitting decisions, it seems to me to be obviously reasonable to be concerned about both process and outcome. To say a judge is an activist judge is to say that this judge takes shortcuts on process in order to bring about a certain outcome. If a judge is using bad reasoning to uphold noble goals, and that reasoning becomes precedent, then we might have a problem. Is there anything intrinsically unreasonable about this?
For a court decision to be “undeniably good,” I hold that it has to lead to the right outcome in the right way. You can’t just argue that it results in something awesome; you also have to argue that it’s legally sound. I know I don’t have the expertise to do that. Perhaps the reasoning in the decision is impeccable. I don’t know: I haven’t read it, and I’m probably not going to, and even if I did I wouldn’t be qualified to say much about it. But if you’re going to claim the ruling is undeniably good, I want to see some reference to how the decision was reached.
Finally, on a somewhat different note, I think it’s a terrible mistake to identify “constitutional” with “on the right side of history”; that’s the identification that’s at the root of the “judicial activism” complaint. If someone has the kind of insight into the direction of history that allows her to measure the Constitution against it, I hold that she needs to work to change the Constitution, not merely to reinterpret it. Even if all interpretation is fluid, etc., etc., the new interpretation acquires legitimacy and power from a change in the text.
But if you’re going to claim the ruling is undeniably good, I want to see some reference to how the decision was reached.
Forthcoming.Report
One thing that has always troubled me is the viewpoint of the Dred Scott decision as seen today. We can all look back and say “of course this started a civil war!” (and followed by “what cowardice!” and other bad things about the judges) but let’s look at precedent, stare decisis, etc… and ask whether there was any established reason for the Supreme Court to say “nope, we’ve read the Constitution and came to the conclusion that we need to change what we’ve been doing for the last hundred or so years.”
They kicked the can down the road. They followed precedent and didn’t rock the boat. They refused to be “activist judges”.
Fast forward. Not quite to Loving v. Virginia, but to the State Supreme Court trial that preceded it. Leon Bazile talked about God’s decrees and how God segregated the races and so on (yes, in the “dicta”, not that that impacts the point disproportionately). Bazile was using established State Law and the State Constitution and came to the conclusion that the State had the right to recognize *THIS* marriage but not *THAT* one… moreover, had the right to tell the couple to live somewhere else if they wanted to claim to be “married”. He had precedent on his side and I’m pretty dang sure that he represented the majority of the folks in the state at the time of his appointment (and, sad to say, perhaps even by the time of this ruling).
I considered making similar paragraphs about Griswold v. Connecticut or Lawrence v. Texas. I don’t think I need to, though. They follow the same theme as above.
Looking back, we can totally say that a lower court should have been activist and it was downright wicked for the court to *NOT* buck precedent. We don’t see “judicial activism” but “a court acting as a check and balance against the other two branches as the Fathers intended”.
I am not, of course, a fan of stare decisis. Who is?
Are there systems where stare decisis is not used, though? Are those systems measurably better?
I wonder if the problems from a system with too much reliance on precedent might not be more manageable than the problems from a system with not enough.Report
Jaybird,
I’m trying to say that an ideal decision reaches the best outcome by the right process while leaving open the possibility that the right process might sometimes preclude justice. And I’m thinking it comes down to trade-offs. A long time ago I read a book about the ninth circuit federal courts during the civil rights era. If I’m remembering it right, the district courts would sometimes fudge with the tacit approval of some judges on the appellate court in order to help the civil rights movement. If I’m not totally wrong on the details, this situation fits my take on activism, but I think it was definitely worth it. I’d like prize process unless circumstances are extreme.
I don’t really know enough about the history of constitutional law to go much further with this, though. Thanks for the comment.
-wrbReport