The Myth of Judicial Activism

Another month, another kerfluffle over the phrase "judicial activism." Instead of accepting reality and conceding that it is a silly, pointless phrase not worthy of being defined or refined, the right and the left and the center this week find themselves fighting again over... nothing. These bozos would be better off (and so would we) if they just contemplated their navels for a few hours every day instead of endlessly fighting over this issue. "Judicial activism" means so many different things to so many different people that it means nothing at all. People just need to get over it.

The latest flap all started when a law professor at the University of Kentucky, Lori Ringhand, studied the voting patterns of U.S. Supreme Court Justices to try to determine whether she could quantify and qualify the phrase "judicial activism." Here is her paper so you can read it for yourself. After defining the indefinable phrase to mean instances where a Justice struck down a federal or state law, or overturned Supreme Court precedent, Ringhand concluded that "conservative" justices actually were more "activist" than their "liberal" counterparts.

Her study then was cited in a New York Times house editorial Monday that concluded thusly: "Activism is not necessarily a bad thing. The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed. Clearly, all nine justices, from across the political spectrum, believe this, since they all regularly vote to strike down laws. What is wrong is for one side to pretend its judges are not activist, and turn judicial activism into a partisan talking point, when the numbers show a very different story."

Whoa, Nellie! Them's fighting words to the right. After all, if conservative judges are more activist than liberal judges it won't make any more sense for oily conservative politicians to denounce "activist judges" anymore and then who will they have to blame for their bad laws? So, predictably, the National Review Online posted a piece this morning by a fellow named Matthew J. Franck, who is a professor at Radford University. Franck attacked Ringhand's logic (gee, imagine, two professors disagreeing about methodology) and then of course took aim at the Times for being duped by an argument that is too simple, in Franck's view, to be true.

What is true- and what this episode certainly doesn't disprove-- is that the phrase "judicial activism" ought to be retired to the dumpster of legal and political history, along with the phrases "fellow traveler" and "hippee." As a description, it never had any real meaning. As an insult, it no longer has any real force.

By Andrew Cohen |  September 13, 2006; 2:45 PM ET
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Good article, Mr. Cohen. Can we next dispense with the conservatives' beloved "originalist" title for people like Justice Scalia? In a recent case involving a warrantless search, Judge Scalia defended the court's decision (to allow the evidence in such searches to be admitted to evidence) on the basis that modern police are more professional than in the bad old days when the exclusionary rule was invented. He also pointed out the availability of civil rights lawsuits and other factors - completely removed from the text of the U.S. Constitution - that mitigated against excluding evidence from warrantless searches. His decision may have merit or not, but it is hardly "orignalist."

Posted by: CT | September 13, 2006 03:09 PM

Re: A. Cohen, "Bench Conference"

You're right about one thing -- it is an insult to be a judicial activist. AND, it clearly does have "real force"!! That's why your knee-jerk, ultra lib reaction to it.
It's perfectly descriptive of the gang of four libs plus one -- and that's just on one court. Before long we may be, conservatively, taking back some of that lost ground.Then you'll have something more to whimper and whine about.

Posted by: Joe Halbach,Sr | September 13, 2006 08:41 PM

wow, take away "judicial activism", and what does the ridiculous right have to offer? well, there's......... and then there's...............

hmmmmmmmmmmmm, not much really. as i've pointed out, time and again, in letters, blogs, etc. "judicial activism" is, by definition, what judges do; it's their job. i know this upsets mr. halbach, sr., but there you are.

as for "original intent", it's a theory lacking foundation. since no contemporaneous notes exist of the first constitutional convention, "original intent" is basically whatever you think it is. that said, if the authors truly intended that it remain static, they'd not have inserted a mechanism for amending it. so much for "original intent".

Posted by: cpinva | September 14, 2006 12:21 AM

"Judicial Activism" - in the sense of reinterpreting an existing law to accommodate any hitherto unmentioned valid aspect of it or overruling a Supreme Court precedent or the strinking down of state or a federal law - are logically enough the 'true functionalities' of a judiciary.

These judicial events have, of late - say in the past three decades or so - got labled in a derogatory tone as "Judicial Activism" and complained about.

The reason - as same everywhere around the world -is quite obvious: that the political bosses of these yester decades have always prefered 'statuscos' so that they could manipulate the state-affairs in an easy mechanical static way and continue to stay in power - and for them any change in the law of the land is 'disturbing'. They would rather insist on a 'committed judiciary' - preferably apathetic than any kind of ;judical activism' !

[social anthropologist]
Bangalore - India

Posted by: vedapushpa | September 14, 2006 03:56 AM

This column is another example of why we left-wing blogofascists roll our eyes at most attempts by media pundits to be "even-handed" and "judicious." Rightwing activists create the totally bogus concept of "judicial activism"; rightwing politicians use it for decades to provide phony intellectual cover for attacks on judges who they consider excessively zealous in protecting the rights of women, racial minorities, consumers, and people in general; and in response, Andrew Cohen proclaims from Mount Olympus that both the right and the left are "bozos" for fighting over a "silly, pointless phrase."

This kind of "evenhandedness" basically amounts to scolding both the schoolyard bully and his victims--the bully for beating up the other kids, and the victims for violently attacking the bully's fists with their chins.

Posted by: Karl Weber | September 14, 2006 07:46 AM

Mr. Cohen:

You mischaracterize the study somewhat. It concludes that "conserverative" judges are more likely to overturn federal legislation than are their "liberal" counterparts. But it also concludes that "liberal" judges are more likely to overturn state laws than are their "conservative" colleagues. No great surprise there.

Here in Canada, the courts are much less politicized than they are in the U.S. But we still often hear the "judicial activism" allegation.

A particular issue here is that rights of Aboriginal peoples are entrenched in our Constitution, something Conservatives don't like. When judges rule in favor of treaty or aboriginal rights, they are likely to be tarred with the "activism" brush. And, then, there is the same-sex marriage debate. Several of our superior courts, but not yet the Supreme Court, have ruled strongly that same-sex marrigage is a constitutionally protected right.

Much of it is just politics, and has little to do with the way judges do their jobs.


Bob Beal, Edmonton, Alberta.

Posted by: Bob Beal | September 14, 2006 08:10 AM

Just look at Kelo v. New London. Scalia ruthlessly attacked the court for not overturning a state law that he did not like. This is the big lie here. Conservative activists like to say their guys are acting on principle, while liberal justices are not. Anyone with half a brain can see that each judge is merely acting on different principles than the others...yuck.

Posted by: The | September 14, 2006 04:42 PM

Mr. Cohen is missing the elephant in the room, and it has nothing to do with what "judicial activism" means or doesn't mean. Mr. Cohen quotes the NY Times: "The Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed." Here you have the NY Times advocating for judges to strike down statutes that are constitutional, merely because the judges think they are "flawed." This is a version of judicial review that would basically turn the country upside down, and give judges an absolute veto over not just every new law, but every old law that's still on the books. And what does Mr. Cohen think about that?

Posted by: Andrew | September 14, 2006 10:09 PM

Justice Thomas said it best during his confirmation hearings, when asked to express his views on "judicial activism" after having had to endure a 15-minute diatribe on the subject from Sen Strom Thurmond:
"Senator, judicial activism is when the court rules against you."

Posted by: Cliff Martin | September 14, 2006 11:49 PM

Correction: It was Justice Suter, not Justice Thomas.

Posted by: Cliff Martin | September 14, 2006 11:56 PM

The GOP "GOP-servatives" on the benches in America's courts are often not only judicially activist but also exceedingly wicked. This term ought to be discussed and used. They are fairly easy to spot. Like the California Eastern District's Lawrence O'Neill. He has had three significant jobs in his life--cop, prosecutor, and judge (who favors exceedingly cruel prosecutors). This does not properly prepare someone for the Article III court, it makes him into yet another rubber stamp for "the law." When we get into this notion of judicial activism, let's recall the judgment of the Nuremburg Tribunals AGAINST the German Judges, rejecting their defense that they were only complying with the Nuremburg Laws, declaring them EVIL if they did not stand for justice against the laws of wickedness. The problem with law is the corruption of wealth, status, prestige, privilege, avarice, greed, lust inside the provisions. If you enforce THAT you validate the reign of evil. The court was supposed to strike evil down, and stand for the poor, the orphan, the widow, the maimed, lame, blind, those shut out by society's masses. Instead, the court has become a rubber stamp for organized, government-sanctioned cruelty. This isn't being a "good American" anymore than supporting the fascists in WWII was being a "good German." So you see, it's all subject to semantic framing. The NEO-RIGHT is much like that anointed cherub that covers, and the NEO LIBERALS are likewise. In short, it will not mean any difference for those left out and shut out and those facing injustice and cruelty, it will only matter as to who is getting the money and the status and the favors and the special treatment AMONG the rich and the elites. The American court has become an anachronism, for it is exceedingly wicked as the third sister of an exceedingly wicked family of three. So as Antonin Scalia goes duck hunting with the beneficiary of a case sitting on his desk, and refuses to recuse himself with characteristic crude arrogance and narcicism run riot, you have a fairly accurate view of the American Court. It is exceedingly wicked before God.

Posted by: CEK | September 15, 2006 12:55 PM

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