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Judicial Activism: It’s Not Just A River In Egypt

Since the Democrats assumed control of the entire federal government a couple of years ago, more than a few of the usual suspects has become quite enamoured of a phrase they used to loathe: “Judicial activism.” And they’ve wielded this new toy with all the gusto, and skill, of a toddler using his new plastic mallet to ‘fix’ a fine Swiss watch.

Judicial activism, as generally used by those on the Right, does not refer to every action by the judiciary that results in an undesirable outcome. Rather, it is the act of reaching beyond the scope of the Constitution or the law to read into it things that simply aren’t there. Or, as Black’s Law Dictionary puts it, a:

philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.

IOW, judicial activism doesn’t mean “reaching a decision I don’t like.” Many close legal questions come down to variances in philosophy without being activist. But it isn’t actually hard to see the distinctions that lead the Right to consider Wickard v. Filburn or Hamdan v. Rumsfeld as “activist” but not Brown v. Board of Education or Heller v. District of Columbia.

The root of it, it seems, is a fundamental disconnect between the two sides of the aisle on the basic purpose and function of the judiciary and, by extension, their respective visions of the proper role of the government. Generalizing very broadly (all appropriate caveats assumed), the Left is concerned foremost with outcomes while the Right is primarily concerned with structure. Megan McArdle hit this nail on the head some time back:

Libertarians are process people, something that our political opponents find impossible to believe can be real, rather than disingenuous. So when I say that I think Lawrence v. Texas[*] might be the right result morally but the wrong result legally, it must be that I secretly want sodomy to be illegal, or at the very least don’t care. Or when I am troubled by government intervening in the Chrysler bankruptcy process, it’s because I hate unions. And of course, when I am against post-hoc legal judgments against bankers or their bonuses, it’s just because I’m an apologist for rich people. But to a libertarian, process matters. Having a good process is better than getting a good outcome, because a good process is one that maximizes your chances of getting good outcomes over time.

Conservatives are indeed sometimes less consistent than libertarians in this regard, but the point is generally applicable to them, as well. The essence of conservatism is the understanding that mores, traditions, and customs that have evolved over centuries (IOW, processes that have been proven over time to work) should not be lightly cast aside merely because we think up a shiny new one.

The Constitution exists to provide the basic framework for the federal government but cannot delineate every possible contingency and, thus, must be interpreted and applied to varying circumstances. But respect for the contents of the document itself, rather than what we wish it said, is essential to the viability of our system of government. The document is silent as to who exactly is the arbiter of what it means. It implicitly assumes each branch of government has the right and the duty to make determinations as to what is and is not Constitutional and, thus, assumes that that push-pull between co-equal branches will lead to optimal results. The Supreme Court assigned to itself the role of having the final say in Marbury v. Madison, a perfectly reasonable decision (someone needs to have that job) that history has seen no reason to upset.

The Supremes have hardly been perfect in that role. Everyone, no matter their political persuasion, can identify egregious errors. One would be hard pressed, for instance, to find anyone who thinks overturning Plessy v. Ferguson was the wrong decision merely because that decision had stood for 58 years. The rightness of the Brown decision is acknowledged by everyone outside the fringes now. But the fact that pretty much everyone agrees with it is not why it was a good ruling – rather, everyone agrees because we understand that Plessy flew in the face of the plain text of the Constitution; it was an affront to the very principles of ordered liberty.

Where we disagree tends to be on the close questions of our own day, especially the ones that touch on the broad competing visions of the proper role of government. Striking down a law passed by a democratically-elected legislature is not necessarily “activism.” Nor is upholding a law necessarily “restrained.” It depends on whether or not the law violates the Constitution (and the primary failing I note in left-wing resort to the phrase “judicial activism” is that they ignore this rather significant distinction).

Accordingly, Judge Hudson’s decision Monday striking down the individual mandate on the grounds that the Constitution does not empower the federal government to reach individual inactivity is entirely within the proper scope and function of the judiciary. The contrary decision upholding it, however, was activist because they found a never-before-contemplated scope to federal government power. The Michigan ruling, left unchecked, leaves almost nothing beyond the reach of the State – if the State can force you to enter into a commercial transaction with a health insurance company merely because you’ll need medical care one day, the re is no cognizable restraint left upon it deciding to regulate your food, transportation, clothing, shelter, and a myriad of other choices you will eventually have to make.

I anticipate a spate of responses saying that all I’ve done here there is apply my own preferences in coming to a conclusion. Yet I also consider courts finding a Constitutional right to gay marriage “activist.” Not, as with Megan’s example quoted above, because I oppose gay marriage (I support it; in fact I’ve voted ”Nay on gay marriage bans in two states), or hate/fear gays (sorry, no), or even because I don’t think the government should be involved in marriage at all (FTR, I don’t). No, strange though it may be to some, I actually think that such a hugely significant change in a cultural institution that’s existed for millennia should be addressed democratically, not by judges straining to impose their preferred outcome on the populace. That’s the case even though I agree with this particular outcome.

It’s a shame that the notion that there are actually limits on federal power (other than, perhaps, on its capacity to interfere with personal license) is controversial. But that is where we are in the post-Wickard republic. The actual outcome of any given case ought not be especially important in the grand scheme of things, provided the process was sound, lest bad facts make bad law. Instead, we find ourselves squabbling over those very outcomes without regard to the precedent we’re establishing. As already noted, precedent isn’t sacrosanct, but it is powerful. Our system of ordered liberty depends on precedent not creating, or being created by, bad processes.

Judicial activism, substituting as it does individual preference for Constitutional principle, is the very essence of bad process. Doubtless the comments will now overflow with alleged acts of rightward judicial activism. Some will even be valid. But the phenomenon is nevertheless largely a creature of the Left, a natural byproduct of an expansive view of the purpose and powers of government in general. As used by them of late, however, the phrase itself is a just a substitute for critical thinking. They seem to think they’re exposing hypocrisy or something, but I’ve yet to see it applied in a way that does anything other than prove they just don’t get it. Nor can they so long as their focus is on specific outcomes, regardless of principle, rather than how those outcomes obtain.


* Lawrence overturned a Supreme Court precedent that was a mere 17 years old. Likewise, Boumediene v. Bush struck down a Congressional enactment. Yet I cannot recall ever hearing any of our friends to the left describe either as “activist.”

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About Dodd
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He can kill a mime using only his thumb. He joined the staff at OTB in May 2007. Follow Dodd on Twitter.

Comments

  1. Vast Variety says:

    “I actually think that such a hugely significant change in a cultural institution that’s existed for millennia should be addressed democratically,”

    For one, the institution of marriage has had many forms over the last couple of thousand years, which has included gay marriage. There are instances of legal same sex marriages dating back to ancient Egypt.

    For another, why should I be willing to put up a civil right that has been been granted to me by the constitution and confirmed as such by the Supreme Court on at least 14 occasions, be put up to a popular vote simply becuase I was born a gay man?

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  2. anjin-san says:

    > And they’ve wielded this new toy with all the gusto, and skill, of a toddler using his new plastic mallet to ‘fix’ a fine Swiss watch.

    Ah, the mighty Dodd sarcasm engine is firing on all cylinders. Not since the demise of the Yugo & the Trabant have we seen such a display of horsepower…

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  3. anjin-san says:

    > For another, why should I be willing to put up a civil right that has been been granted to me by the constitution and confirmed as such by the Supreme Court on at least 14 occasions, be put up to a popular vote simply becuase I was born a gay man?

    Because the right cannot remain cohesive without the “guns, gays and God” issues to keep the sheep properly fearful?

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  4. sam says:

    @Dodd

    Judge Hudson’s decision Monday striking down the individual mandate on the grounds that the Constitution does not empower the federal government to reach individual inactivity is entirely within the proper scope and function of the judiciary. The contrary decision upholding it, however, was activist because they found a never-before-contemplated scope to federal government power.

    Never before contemplated, huh? Then how explain the public accommodations provisions of the Civil Rights Act of 1964 and a case like Heart of Atlanta Motel vs. United States?

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  5. tom p says:

    “more than a few of the usual suspects has become quite enamoured of a phrase they used to loathe: “Judicial activism.”

    Dodd, simple question: Who?

    >”Judicial activism, as generally used by those on the Right, does not refer to every action by the judiciary that results in an undesirable outcome. ”

    What world do you live in???? Name me one single decision that does NOT come down to exactly that????

    >”Rather, it is the act of reaching beyond the scope of the Constitution or the law to read into it things that simply aren’t there. ”

    According to whom???? YOU???? Sorry Dodd, I much prefer the collected wisdom of centuries worth of Supreme Court decisions as opposed to your fevered delusions.

    At this point, I have stopped reading your … diatribe. Mostly because you obviously have nothing useful to say. So stop commenting about how this that or the other is unconstitutional when Judges have for decades found things to be EXACTLY that. If you want to change the constitution, then get about the hard work of doing that… but don’t sit here and tell me that a century of judicial interpretation is wrong and that HUNDREDS of federal (circuit, appeals, supreme court) judges are idiots but YOU have the correct interpretation….

    Sorry Dodd, I just don’t think you are quite that intelligent (maybe you are, but at this point I ain’t buying it)

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  6. Davebo says:

    ” But it isn’t actually hard to see the distinctions that lead the Right to consider Wickard v. Filburn or Hamdan v. Rumsfeld as “activist” but not Brown v. Board of Education or Heller v. District of Columbia.”

    Hilarious! The right didn’t consider rown v. Board of Education as judicial activism?

    In what universe Dodd? Do you even know who “the right” is? Sure, those that opposed it were almost all Democrats at the time. But they are now the only think keeping the GOP relevant.

    You know, those useful idiots you pander to.

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  7. steve says:

    I support gun rights. I own guns. I shoot them. But, the second amendment does have that pesky bit about militias. So, we get a lot of tap dancing around those words. They could have just said something simple like “Everyone gets to have guns.” They did not. Meh.

    Steve

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  8. An Interested Party says:

    “…philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

    But enough about Bush v. Gore…

    “The essence of conservatism is the understanding that mores, traditions, and customs that have evolved over centuries (IOW, processes that have been proven over time to work) should not be lightly cast aside merely because we think up a shiny new one.”

    But enough about Jim Crow…

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  9. Tano says:

    What a train wreck of a post.

    First you start off by insulting liberals. Fine. Now we know that we are in for nothing but ranting entertainment. Did you actually have ambition to make a serious point?

    Second, you erect a ridiculous strawman. Nobody thinks “activism” refers simply to decisions that one doesn’t like. And when libs use the term, they have far more substantive reasons for their disagreement. But you go out of your way to make it clear that you have no interest in actually engaging a real issue out there – you want to flail away at phantom arguments.

    I don’t have the time to get into the substance of your arguments – but I will just point out another definition of the term “activist” – one that you might legitimately charge libs with using, and then you might mount an argument against that usage. Of course, this second definition is used by lots of folks on the right as well, so that might get inconvenient.

    In fact – this second definition is actually illustrated quite nicely in the cartoon picture that you chose to illustrate your point. We see there a judiciary that is not taking a chainsaw to the Constitution per se – it is taking a chain saw to the other branches. This is the second, and probably more prevalent definition – popularized by those on the right who accuse liberal judges of substituting their judgment for those of the elected branches. Surely you have heard all those rants about the unelected judges, no?

    Taking that a step further – the common complaint from the right is that the liberal activists support this notion of judicial activism because they want to win in the courts what they cannot win in the elected branches. Surely you have heard that argument, right?

    Y’know, its like trying to get the judges to defeat Obamacare because the elected branches won’t do so. I bet you remember that study that was done a few years ago – that found that the SC justices most likely to overturn acts of Congress were Thomas and Scalia – those least likely to do so were Breyer and Ginsburg. This after the GOP had ruled the legislature for a decade!

    Its an interesting topic – with lots of blame to go around. It certainly merits an honest discussion. You just give us hacky crap.

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  10. Dodd says:

    this second definition is actually illustrated quite nicely in the cartoon picture that you chose to illustrate your point. We see there a judiciary that is not taking a chainsaw to the Constitution per se – it is taking a chain saw to the other branches. This is the second, and probably more prevalent definition – popularized by those on the right who accuse liberal judges of substituting their judgment for those of the elected branches. Surely you have heard all those rants about the unelected judges, no?

    Yes. I totally ignored that line of argument by highlighting it early in the fifth sentence of the post in a blockquote from an unimpeachably neutral source.

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  11. Alex Knapp says:

    Rather, it is the act of reaching beyond the scope of the Constitution or the law to read into it things that simply aren’t there.

    Out of curiosity, where in the Constitution is the judiciary granted the power to invalidate a law passed by the Congress?

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  12. Herb says:

    One, Two, Wickard’s coming for you
    Three, four, better lock the door.

    Dodd’s Wickard obsession is hilarious. Wickard’s been a slippery slope slope we have yet to slide down. Indeed, since Wickard was decided, the United States has seen almost incomparable prosperity and prestige. Not because of Wickard, obviously, but if Wickard is going to destroy us….it should try a little harder.

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  13. MarkedMan says:

    As a progressive, I would just like to go on record: I point out the incredible judicial activism of this Supreme Court in particular (Picking a president for chrissake) not in shock, but pretty much solely to point it out to the right wingers that if they were gonna condemn it then, they really should condemn it now.

    As for your article about marriage rights should be majority rule. Hmm. I’ve got a list of people that I don’t think should every be married (Britney Spears, Larry King to name two). Can we put them to a vote? If not, why not?

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  14. James Joyner says:

    @Alex: “Out of curiosity, where in the Constitution is the judiciary granted the power to invalidate a law passed by the Congress?”

    Where, indeed. While contemplated in the Federalist Papers, it certainly isn’t mentioned in the very brief Article III. And, after it was articulated in Marbury v. Madison in 1803, it wasn’t used again to strike down Federal legislation for decades. In Dred Scott, I believe.

    @Dodd: “The rightness of the Brown decision is acknowledged by everyone outside the fringes now. But the fact that pretty much everyone agrees with it is not why it was a good ruling – rather, everyone agrees because we understand that Plessy flew in the face of the plain text of the Constitution; it was an affront to the very principles of ordered liberty. ”

    True enough. “Separate but equal” goes against the plain words of the 14th Amendment.

    But I’d argue that the actual reasoning of Brown — the process — constituted judicial activism. Rather than simply declaring an error in Plessy and saying the state may not discriminate on the basis of race, they cited all manner of social science gobbledygook about the stigma that segregation imposes on children. That’s a public policy viewpoint, not interpretation of the Constitution. So, a decision that was absolutely correct but a rationale that’s activist in the sense of being outside the Court’s purview.

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  15. Alex Knapp says:

    “Separate but equal” goes against the plain words of the 14th Amendment.

    Well, no, it really doesn’t. It seems obvious in hindsight but that wasn’t the commonly held interpretation under the Plessy standard.

    Rather than simply declaring an error in Plessy and saying the state may not discriminate on the basis of race, they cited all manner of social science gobbledygook about the stigma that segregation imposes on children.

    The “gobbletygook” was essential to the holding. The Court found (through a finding of fact, which is well within its purview) that even if segregated facilities were given equal resources and were equal in quality (which was basically the case in Kansas), the very fact of segregation itself made “separate but equal” a practical impossibility, thereby concluding that the 14th Amendment made segregation illegal.

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  16. TG Chicago says:

    When it comes to the recent decision to invalidate parts of the health care law, we may be talking about standard judicial activism. But we are unquestionably talking about a new form of judicial activism: one where the judge is an activist for the cause on which he is ruling:

    http://www.rightwingwatch.org/content/judge-hudson%E2%80%99s-right-wing-ties

    Judge Hudson is a founding stakeholder in a right wing political operation that is trying to take down the health care law. And the Judge is doing what he can to kill it.

    This is a far worse form of judicial activism than anything discussed in the post above.

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  17. mantis says:

    Judicial activism doesn’t mean “reaching a decision I don’t like.”

    We know. It means “reaching a decision Republicans don’t like.”

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  18. Dodd says:

    The “gobbletygook” was essential to the holding.

    As drafted, yes, it was essential to the holding. It was not essential to the ruling, however, which could have been just as easily reached without it. Which I think was Jim’s point.

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  19. Grewgills says:

    Judicial activism, as generally used by those on the Right, does not refer to every action by the judiciary that results in an undesirable outcome.

    Thank you, I really needed a laugh this morning.

    Yet I also consider courts finding a Constitutional right to gay marriage “activist.” … I actually think that such a hugely significant change in a cultural institution that’s existed for millennia should be addressed democratically, not by judges straining to impose their preferred outcome on the populace.

    Do you think Loving v Virginia was decided wrongly on similar grounds?

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  20. matt says:

    Grewgills : Of course he’s ignoring that gay marriage and such was prominent throughout human history into the ancient times but hey who’s side are you on anyway??

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  21. Alex Knapp says:

    which could have been just as easily reached without it

    Do you really think so, given the precedent and jurisprudence of the time? I’m not so sure.

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  22. Steve Plunk says:

    Dodd’s bravery in facing the cadre of liberals who reside here is admirable. A well reasoned post on his part met with petty attacks. The same ol’ thing just a different day and topic.

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  23. Dodd says:

    That’s kind of you to say, but bravery isn’t the word for it. It takes no more bravery to scan past the (semi)anonymous Internet tough guys than it does for them to spew venom from behind the safety of their keyboards they’d probably not have the intestinal fortitude to say to say to my face.

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  24. anjin-san says:

    Dodd, you can dish it out, but you can’t take it. If your little feelings are hurt, stay out of blogging and play hopscotch or something you can handle. Possibly you could spend your time watching Sarah Palin whining about how she is the victim of those mean liberals.

    The reason you get no respect in here is because you have earned none. In case you have not noticed, James and Doug seem to do just fine.

    And I assure you, this is something I would say to your face.

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  25. anjin-san says:

    > petty attacks.

    You don’t like petty attacks? Fine. Show us some documentation that Obama is anti-business by his own admission. Or wimp out and continue to hide behind “I am not doing your research for you”.

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  26. Grewgills says:

    Dodd,
    Shoot me an email next time you head out to Hawaii, I will be happy to say anything I have written here to you face over a beer.

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