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.