What Exactly Is Judicial Activism? The Charges Made Against the President's Judicial Nominees

By JOHN W. DEAN
Friday, Jun. 17, 2005

"Judicial activism" has become an appellation of choice in the current debate about the role of judges and justices in American government. Most prominently, right now, it's used by Democrats to attack the President's judicial nominees, and by Republicans to attack judges who reach results of which they do not approve.

But exactly what does "judicial activism" mean? In this column, I'll explore that thorny question.

Two Recent Books on Judicial Activism Fail to Define "Judicial Activism" Precisely

Left-leaning trial attorney Martin Garbus's book Courting Disaster: The Supreme Court And The Unmaking Of American Law takes "judicial activism" as its main subject. Garbus believes that the High Court under Chief Justice John Marshall, the New Deal Court, the Warren Court, and now the Rehnquist Court, have "all had political agendas and practiced judicial activism." Yet Garbus does not define specifically what "judicial activism" means.

Right-leaning evangelical broadcaster (and Yale-trained lawyer) Pat Robertson also takes issue with "judicial activism" in his newest book Courting Disaster: How The Supreme Court Is Usurping The Power Of Congress And The People. He writes that examples "of heavy-handed judicial activism are not hard to find"; cites a string of cases he does not like; but never tells us exactly what he means by judicial activism.

Perhaps it's unfair to single out Garbus and Robertson. They are only using the term as does most everyone else, on both sides of the aisle: imprecisely and vaguely. Countless judicial opinions, daily newspapers, weekly news magazines, blogs, and television commentaries are guilty of the same imprecision.

The Debate over Judicial Nominees: Guilty of the Same Vagueness

Most recently, such vagueness cropped up repeatedly in an ongoing debate on the floor of the U.S. House of Representatives and Senate.

For example, consider remarks by Senator Jon Corzine (D-NJ) explaining his opposition to President Bush's judicial nominees Priscilla Owen, Janice Rogers Brown, William Pryor, and William Myers. Corzine told his Senate colleagues,"I believe strongly that we need to oppose these nominations . . . not because of their personal character--but because, in my view, they have operated outside of the mainstream and endeavored, through judicial activism, to inappropriately alter the law."

Again, the reference is vague: What exactly does Corzine mean by judicial activism?

Senator Orrin Hatch (R-UT) defended these nominees, denying they were judicial activists - and suggested that the judicial activism charge should, instead, be laid at the door of the sort of judges that Democrats support. Senator Hatch said, "The American people know judicial activism when they see it. Just last week a Federal judge in Nebraska invalidated a State constitutional amendment preserving traditional marriage in that State. If that opinion is upheld, that will bind every State in the Union under the full faith and credit clause. Talk about activism."

Without quibbling here with the Senator's understanding of the broader application of the Nebraska ruling, suffice it to say that, like Corzine, Hatch utterly fails to explain why he considers this particular ruling an instance of "judicial activism."

Such charges, then, add absolutely nothing to the debate because it is anything but clear what the Senators -- as well as all others using the term -- mean. And such conflicting, typically inexplicit usage of this moniker is rampant.

Given the importance of this debate, however, it seems appropriate to cut through the rhetoric and politics to look at the reality behind the term. I'll start with the definitions and descriptions by non-partisan lexicographers and encyclopedists.

Definitions And Descriptions Of Judicial Activism

The Harper Collins Dictionary of American Government And Politics depicts judicial activism as the "making of new public policies through the decisions of judges."

Black's Law Dictionary defines it as a "[j]udical philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges."

The New Dictionary of Cultural Literacy says it is synonymous with the term "broad construction" - which, according to the dictionary, is a "theory of interpretation of the Constitution that hold that the spirit of the times, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court."

When broadly describing the work of American judiciary, the Oxford Companion to American Law, explains that judges have been struggling since the nation's founding "to reconcile their role as impartial legal actors, whose rulings much rely on established principles of law, with their place in the political sphere."

During the Nineteenth Century, the Oxford Companion adds, slavery and economic regulation "caused judges great anxiety" in sorting out their personal feelings vis-à-vis the law. Then, in the early Twentieth Century, "sociological jurisprudence" and "legal realism" called for judges to "look beyond precedent to the underlying social and economic bases of the law." Legal realists claimed judges could not and should not separate their political beliefs from their judicial work.

According to the Oxford Companion, these theories were conflated in the second half of the century - and the result was "the judicial activism" that addressed matters like desegregation, abortion, and school prayer.

Obviously, these various definitions and explanations of "judicial activism" are inconsistent with each other. More to the point, they fail to provide the specificity and precision our debates over the charge desperately need.

What exactly does a judge have to do to be a judicial activist? Attempts to answer this question, it seems, have created a good bit of heat, and not a lot of light.

Sorting The Wheat From The Chaff When It Comes to Works on Judicial Activism

What about all the research on - and references to - judicial activism in the academy? Literally thousands upon thousands of law journal articles address it, either head-on or in passing. Law professors are writing about it in law journal articles at the current rate of almost 500 times a year. In addition, countless state and federal courts have addressed the subject, as have sociologists, historians and political scientists.

Fortunately, this mass of literature on the subject has been analyzed -- by Keenan Kmiec, in a 2004 Comment in the California Law Review, "The Origin and Current Meaning of 'Judicial Activism.'" Because it is a straightforward study -- one that has no axe to grind, and takes no position on whether judicial activism is good or bad -- Kmiec's work is particularly helpful.

Justice Scalia has observed the term, in its current usage, is "totally imprecise." More specifically, he added with his Scalian frankness, "It's just nothing but fluff." Kmiec, for good reason, believes matters should be otherwise. For, he points out, the phrase can serve as "a starting point for meaningful conversation about the judicial craft."

But that would require those who use the term to learn what it means. (Reading Kmiec's terrific essay would be a good start.) Anyone who accuses any judge or judicial nominee of being a judicial activist should either explain what they mean, or say nothing.

Kmiec's Study of Judicial Activism: Isolating at Least Five Core Meanings

According to Kmiec, the phrase "judicial activism" first surfaced in a 1947 article written by historian Arthur Schlesinger Jr. for Fortune magazine. (While Kmiec could not be certain this was the actual first use of the term, he is sure that Schlesinger's article is "indisputably the seminal piece" - the one that introduced the term into the national debate.)

In his article, Schlesinger analyzed the nine justices on the 1947 Supreme Court. He separated them into blocs: Judicial Activists (Justices Black, Douglas, Murphy and Rutledge); the Judicial Self-Restrained (Justices Frankfurter, Jackson and Burton); and those falling in the middle (Justice Reed and the Chief Justice Vinson).

Since Schlesinger's analysis, the discussion has been refined, to some extent. After reviewing usage of the term in judicial opinions, law journal articles, and the general news media, Kmiec found that the phrase "judicial activism" has at least "five core meanings:

The charge has been lodged when, according to the speaker, the court at issued has (1) invalidated an arguably constitutional action by another branch; (2) failed to adhere to precedent; (3) legislated from the bench; (4) departed from accepted interpretive mythology; or (5) engaged in result-oriented judging.

Understanding Nuances within the Categories of "Activism"

Because Kmiec's Comment is an easy and brief read, I won't attempt a crib. But I will note that particular attention should be paid to his nuanced description of what is, and is not, judicial activism - within each of these five categories.

Let's focus, for a moment, on the second category: Failure to adhere to precedent. It's key, to understand this charge, to know the difference between vertical precedent (from a higher court) or horizontal precedent (from the court itself, or a court of the same level). Ignoring a vertical precedent - for instance, a federal district court's opting to ignore binding U.S. Supreme Court precedent -- can be judicial activism. But ignoring horizontal precedent - while it may be controversial - is not judicial activism.

So when the Supreme Court overturns its own precedent, or when a federal appellate court differs from all the other federal appeals courts that have considered the question (but the Supreme Court has not yet ruled), these actions may be controversial, but should not be labeled activism. A difference of opinion or considered change of mind as to how the law ought to be read, is not activism.

Another important distinction within this category is what kind of precedent is at issue: constitutional, statutory, or "common law." (The common law is the law made, over our history, by judges). Overturning a constitutional or common law precedent is not considered judicial activism. (Indeed, the common law's strength was that it could evolve over time as new judges added to its fabric.)

But overturning a statutory precedent can be considered judicial activism: The logic is that once a statute been interpreted by a court, that interpretation all but becomes part of the statute itself.

"Legislation from the Bench": A Kind of Activism that is Rare Indeed

Now let's focus on Kmiec's third brand of activism: "legislating from the bench." President Bush has condemned this very kind of activism --- and said he won't appoint judges who practice it. But he's attacking a straw man: From what I can find, this is the most infrequent type of judicial activism, and not much of a problem.

Rare is the judge who truly legislates from the bench - in the sense of requiring broad compliance with detailed, forward-looking mandates that affect many parties who are not before the court. In almost all cases, judges simply do what they are asked to do: Resolve a concrete dispute between specific parties about something that occurred in the past, or is ongoing.

Even when judges do provide generally-applicable rules for the future, so that their orders may resemble legislation to some onlookers, they often have no choice - for the legislative has, in effect, invited them to do just that.

As U.S. Court of Appeals Judge Richard Posner has explained, often statutes "are so vague that they merely provide an initial impetus to the creation of frankly judge-made law." He cites the federal antitrust laws as one example; judges have been forced to devise specific rules in order to honor the statute's pro-competition, anti-monopoly purpose.

In constitutional law, too, some kind of quasi-legislative framework is often called for: Once a court has made a certain, substantive decision, it needs to give the world guidance as to how that decision can be properly honored.

Here's one prominent example : Certainly, one can argue about whether the Supreme Court was correct, in Roe v. Wade, to find a constitutional right, in effect, to have a abortion. But once the Court had found such a right, should it have then failed to provide women and doctors guidance by suggesting trimesters as benchmarks for when abortion could, and could not, be regulated or banned?

Critics of Roe should be clear: Their complaint is not really with the "judicial legislation" of the trimester system, but with the Court's constitutional analysis - which led to the trimester system. After all, without the trimester system, the ambiguity could just as well have resulted in more abortions, not fewer.

If Judges Are Result-Oriented, It's Almost Always Impossible to Prove

What about Kmiec's fifth category: Results-oriented judging? This allegation, too, can rarely be proven - and thus should only rarely (if ever) be made.

Doubtless, there are some judges who have a private agenda, and seek to impose their will on the body politic from the bench. But, as Kmiec notes, if this is true, we will never know it; to find "smoking gun" evidence of such "an ulterior motive" would require mind-reading.

One might think such evidence could be found when a judge's policy preferences tend to accord with his or her judicial views, as is so often the case. But there's a chicken-and-egg problem here: The judge may feel that Congress, or the Framers of the Constitution, in their wisdom, must have shared the same policy preferences - for they are, in his or her view, plainly the right ones.

If so, the judge may be looking at the legal sources with policy-colored glasses, but he or she is not simply choosing a result and imposing his will. And if looking at legal sources with policy-colored glasses were judicial activism, virtually every jurist in the nation would be guilty.

Isn't It Time For Straight Talk About Judges?

As the debate goes forward on President Bush's judicial nominees, it would enlighten all if those who charge judicial activism, would tells us exactly what kind of activity they are talking about. Keenan Kmiec has provided a very workable catalogue of the types of activities that can fall under this term, as it has been used over the years.

Judicial activism shouldn't just be code for "judges behaving badly." Those who throw the term around, need to explain what they mean - and confine their claims to plausible ones.

Until they do, to paraphrase Justice Scalia, they are talking fluff. Isn't it time to talk facts instead?


John W. Dean, a FindLaw columnist, is a former counsel to the president.