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July 30, 2003

What is Judicial Activism?

From comments:

By your definition, Nathan, most of the Supreme Court's decisions throughout its history could be deemed "activist." Your definition simply does not fit the real world.
Actually, for large chunks of its history, the Court was very non-activist. In the first 200 years after the Constitution was ratified, the Supreme Court struck down only 127 federal laws. But between 1994 and 2000, the Rehnquist court struck down 28 federal laws-- seven times that historic pace. Striking down laws has only periodically been a large Supreme Court activity. It's worth remembering that most of what the Court does is interpret laws, interpretations that can be reversed legislatively.

This definitional debate on what constitutes judicial activism just keeps cropping up. Most folks on left and right just want to define it as any decision by the courts that they don't like.

Which they have the right to do, but the phrase should then be thrown in the garbage as useless for any analytic discussion.

But there is pretty simple judicial activism has a relatively neutral meaning of judges overturning laws on constitutional grounds. This can be done in the name of conservative principles (property rights etc.) or liberal principles (minority rights, protecting dissident speech). In fact, this court has noted above has been activist across the board in some rather dramatic ways-- Bush v. Gore being the only most extreme example.

And whether a case is activist or not has clear analytic value, even if a lot of public discussion focuses on the substantive political result as the main issue, rather than whether the decision was activist. For example, look at how a few of the recent big decisions broke down:


  • Affirmative action decision that overturned undergrad system
  • Decision overturning sodomy law
  • Overturning Texas conviction for jury selection system problems
  • Limiting state drugging of inmates to make them competent for trial
  • Striking down state punitive damages awards against corporations

    Judicial restraint decisions

  • Upholding mandated computer filters at public libraries
  • Upholding state systems funding legal aid through interest from lawyers accounts
  • Upholding three strikes law in California
  • Upholding Virginia's ban on cross burning

    Progressives might like the sodomy decision and dislike the Court overturning the undergrad affirmative action system, but they were both activist decisions that overturned state laws or regulations. And they might have disliked the computer filter decision or the upholding the three strikes law, but both were judicial restraint decisions.

    Analytically, decisions come in multi-dimensional space, part of it being the substantive outcome but another issue being whether the decision upholds democratic legislation or whether it overturns it. You may be in favor of having elite judges act as platonic guardians to second-guess democracy, but that is a separate factor from whether the decision is right.

    The public when it rails against unelected judges sure knows the difference.

    Posted by Nathan at July 30, 2003 04:52 PM