Legal Commentary

The Politics of "Judicial Activism"

By Big Tent Democrat

Atrios writes:

I'm Not Sure What Judicial Activism Is

Even when their side does "it," I still think it's a very poor term which most of the time means "rulings I don't like." There are judges who are more or less deferential to the other branches, and there are judges who are total hacks who will contradict themselves across rulings, or make absurdly stupid arguments, in order to achieve whatever political/policy ends they want to achieve, but "judicial activism" is a bad frame which suggests that it's somehow illegitimate for the judiciary to act. Call out the hacks for being what they are, but don't call them "activists."

(Emphasis supplied.) I'm sympathetic intellectually to Atrios' point. but the context of the historic use of the term "judicial activist" as a pejorative, which arose in response to the Warren Court's series of decisions on individual liberty, makes the phrase a potent political weapon for progressives attempting to hold back the attempted radical conservative judicial counterrevolution. It would be naive for progressives to discard it now. More . . .

What does "judicial activism" mean? Stated objectively, it means the judiciary overturning actions of the other two branches. The first "judicial activist" was Chief Justice John Marshall, who declared for the Court in Marbury v. Madison that:

It is emphatically the province and duty of the Judicial Department to say what the law is.

Obviously, in so doing, courts will sometimes decide that the actions of the Legislative and Executive branches (and the States) run afoul of the Constitution. When doing so, the courts will be "activist."

The general rule is for courts to presume constitutionality, and indeed, interpret laws in order to avoid constitutional conflict, in an effort to not be "activist."

In reality, judges do what they like, honoring the principle of "judicial modesty" more in the breach, than in practice. Yes, I am a Legal Realist, in the sense that I believe this best describes what happens in our courts.

Thus, my view of the judiciary is that it is another political actor on the stage. As a political actor, I believe in using political methods to attempt to affect its actions.

Describing the attempted radical conservative counterrevolution in the courts as "judicial activism" strikes me as an effective political means to affect the actions of the courts.

Because of this, I think the White House's response to Judge Vinson's ruling on the health bill is good politics. I disagree with Atrios' "honest broker" stance with regard to this point.

Speaking for me only

Full post as published by TalkLeft on February 02, 2011 (boomark / email).