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.