Judicial activism reconsidered

[Intense]

Like many catchwords, "judicial activism" has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually "void for vagueness," for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

Activism or restraint toward one of these does not imply the same toward all the others, and may in some instances imply the opposite toward some other or others. For example, a "restrained" jurist, attempting to hold fast to the "original intentions" of constitutional provisions, must actively strike down statutes passed by a legislature which repeatedly over-steps the bounds of those provisions. Conversely, an "activist" jurist may passively accept expansive legislative action of a sort deemed consistent with general constitutional "values," even if lacking specific constitutional authorization or entering a "gray area" of constitutional prohibitions. One of the more striking examples of the latter was Justice William O. Douglas' repeated deference to the legislature in economic and social legislation, using language dear to the heart of those who believe in judicial restraint,1 though Douglas was a classic judicial activist.

In the analysis that follows, the first priority will be to operationally distinguish judicial activism from judicial restraint, which involves focusing on the concept of "original intent." Only then is it possible to move on to the substantive issues dividing them. Finally, the prevailing image of "liberal, activist judges" will be questioned, the argument being that judicial activists have historically come in various political varieties.
Judicial Activism Reconsidered

 

[Intense]

MEANING VERSUS "INTENT"


At the heart of the concern over judicial activism is the fear that the judge will impose his own personal preferences in his decisions, to such an extent as to ultimately negate the very meaning of law as a body of known rules to guide individual and social conduct. Formally, at least, both supporters and opponents of judicial activism deplore any such result, the former denying that this happens and the latter asserting that it does.

Supporters of judges and justices labeled as judicial activists often assert that these jurists are restrained by the Constitution and are therefore necessarily active against individuals, groups, institutions, and policies in violation of constitutional provisions or principles. The empirical validity of this assertion is not an issue, at this point. Such assertions provide an area of common ground between critics and supporters of particular judicial practices, thus aiding in the definition of judicial activism. It is not mere activity or passivity that is at issue, but the basis of that activity or passivity. In a constitutional government, a jurist is said to be activist-- in the sense objected to-- to the extent that he settles cases on grounds extrinsic to the Constitution. It is ultimately the Constitution toward which the jurist is "activist" or "restrained," though similar principles apply to the construing of statutes. The controversies which rage over judicial activism are controversies as to the extent to which jurists decide cases on grounds extrinsic to the Constitution, and in particular on grounds counter to the Constitution. That such decisions may also violate the popular will in some of its various meanings, or in its various manifestations through different government agencies, is another issue--important, but not necessary for the preliminary task of establishing definitions.

The first order of business, then, is to distinguish (1) attempts to decide cases on grounds intrinsic to the Constitution, however easy or difficult this may prove to be in practice, from (2) attempts to use extrinsic considerations deemed to be of equal (or superior) value to the Constitution.

Judicial Activism Reconsidered

 

[Intense]

The age old question that changed the direction of the Republic, even the meaning of the word, should it be accepted at face value, when it itself' denies face value? What is the means of petition or redress when all else fails to correct an injustice?

 

[Bill O'Olberman]

For example, a "restrained" jurist, attempting to hold fast to the "original intentions" of constitutional provisions, must actively strike down statutes passed by a legislature which repeatedly over-steps the bounds of those provisions

What? This makes no sense... A court shows its restraint by acting to undermine a law or government action.

I always though of judicial activism as a court ruling any law or any government action to be in violation of the constitution. Whether a ruling is deemed to be politically liberal or conservative is irrelevant. District of Columbia v. Heller is an example of judicial activism.