Measures of Judicial Activism

Kevin Drum (via Crooked Timber) points to an article that tries to measure judicial activism of Supreme Court justices. Not a bad idea in general, measuring judicial activism, but I’m less than thrilled with the measure that has been chosen.

The measure the New York Times has chosen basically would consider justices non-activists if the do nothing in terms of striking down laws. That means if Congress passes a law requiring the teaching of Christian Creationism in high school biology classes then a judge would be an activist if he or she struck such a law down as violating the Establishment Clause regarding establishing a state sanctioned religion. Seems to me this is precisely the opposite of being a judicial activist. Judicial activism should be measured not only by what legislation the justice opposes, but also what legislation the justice supports. This makes the notion of a simple measure of judicial activism much harder and maybe even impossible.

Update (James Joyner, 125o): Agreed. The usual meaning of “judicial activism” is something along the lines of Paul Johnson’s definition:

A view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges’ own considered estimates of the vital needs of contemporary society when the elected “political” branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent “trustees” on behalf of society.

As I argued back in March,

[S]trict constructionists don’t argue that the courts should always bow to the majority. Rather, they argue that the elected leaders in the legislative and executive branches are empowered to make public policy so long as it doesn’t exceed the powers granted to those bodies by the Constitution. So, if a majority enacts an ex post facto law, bill of attainder, requires citizens to quarter troops during peacetime, grants government employees the right to search citizens without a warrant, etc., etc., etc., the courts have the duty to strike such laws down. By the same token, if “marriage” was restricted to relations between one man and one woman during the time when a constitutional provision was enacted and allowed to mean that for generations thereafter, it’s rather clear that the law so permitting is not unconstitutional. Laws may be poorly thought out, outmoded, silly, offensive, or otherwise objectional without violating the Constitution.

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Steve Verdon
About Steve Verdon
Steve has a B.A. in Economics from the University of California, Los Angeles and attended graduate school at The George Washington University, leaving school shortly before staring work on his dissertation when his first child was born. He works in the energy industry and prior to that worked at the Bureau of Labor Statistics in the Division of Price Index and Number Research. He joined the staff at OTB in November 2004.


  1. “By the same token, if “marriage” was restricted to relations between one man and one woman during the time when a constitutional provision was enacted and allowed to mean that for generations thereafter, it’s rather clear that the law so permitting is not unconstitutional.”

    Let me rephrase this argument with other laws to see if I understand you correctly.

    Interstate commerce during the time when the constitutional provisions were inacted was restricted to horse drawn vehicles and wind powered boats, (and were for at least a generation or two aftewards) so any laws concerning cars, trucks or trains and plane’s are rather clearly outside the realm of the constitution?

    Or when automobiles did become available, was interstate commerce considered to include them? Was that okay because it happened awhile ago? Is the time a social or industrial change occurs relevant to when it falls under the various laws of the constitution? Are we restricting all constitutional legal matters to what was common when the constitution was created?

  2. HC says:

    Generally, I’d agree with that characterization of constuctionists, but it’s worth noting that Akhil Reed Amar makes a very persuasive originalist argument that government officials are constitutionally free to search without warrants – but are liable in trespass if they’re wrong. Warrants, in the original scheme, provide a defense against suit in trespass – not the sole authorization for searches.

  3. James Joyner says:

    BTP: I’m not sure I’m following your logic.

    There are all sorts of ways that the Commerce Clause has expanded beyond what the Framers intended. The invention of new technologies, however, is not among them. If commerce included selling things and moving them in 1789, then it still does in 2005 regardless of new ways of selling and moving them.

    In my example, people argue that limiting marriage to heterosexuals violates the 14th amendment. I argue that, when the 14th amendment was passed, all states limited marriage to heterosexual unions. QED, it doesn’t suddenly require gay marriage. On the other hand, if a state legislature passed a law allowing gay marriage, it would not violate the 14th amendment, either.

    Note: The gay marriage example was in context to a particular issue in debate at the time of the original post, not an arbitrary choice.

  4. RA says:

    Going from horse driven carts to trains, planes and trucks is not expanding the commerce clause. It dealty with the transportation of goods and services back then and it deals with the same today. The mode of transportation is irrelavent.

    The person who says judges should invent law from the bench is subverting the constitution and should be jailed for it. It is illegal and despicable. If liberals continue to subvert the constitution through activist courts then we can shut down the legislatures and most of the executive branch and just elect these fascist kings directly.

  5. Dodd says:

    The Gray Lady didn’t think their alleged measure of activism through very well. Sure, it allowed them to depict conservatives as more ‘activist,’ which is probably all the thinking that was required, but it also puts them in the position of defining the Justices that sided with the majority in Roe v. Wade and Lawrence v. Texas (just to name two prominent examples we know the paper agreed with) as ‘activist’ – and Alito, who voted to uphold that now well-known spousal notification law, as a ‘non-activist’.

    That that judgment would be correct is, of course, purely incidental since the reason those decisions are ‘activist’ ones is that the majorities that handed them down fell into Mr. Johnson’s definition.

    Willingness to strike down a Congressional statute is certainly a component of any measure of activism. But taken by itself it is not terribly useful as an indicator of the trait.