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Sunday, April 03, 2005

Whither "Activism?"

Lawrence Solum's latest "legal theory lexicon" entry thoughtfully considers the uses, misuses, and ultimately the usefulness of the terms "strict construction" and "judicial activism." In the end, Solum concludes that there is not much clarity, coherence, or utility to either term; at least not so much as to make them useful for careful thinking about jurisprudence.

As to the former, "strict construction," I would quite agree with Solum. Though the President and other politicians and popular commentators tend to like the term "strict constructionists," one does not hear Judges or Professors saying this much of their own approach. But as to "judicial activism" I'm not so sure we don't know it when we see it.

At least at the Columbia Law School, I find that even professors who like such decisions as Roe and Roper (to name but two) acknowledge that they are at best a massive stretch of existing law and really fairly naked substitution of judicial wisdom under the guise of judicial review. I believe that when judicial review is exercised in a fashion to strike down a law or policy using arguments that simply will not hold up as uses of legal materials, that constitutes judicial activism.

As I say, I find that I have conversations with a variety intellectually honest professors at Columbia who support these decisions because they believe that judges are by and large a healthy counterbalance to the popular will. Whether they will think the same of the role of judges as more "conservative" activism arises remains to be seen. But I do not think that many law professors (I know that Tribe and Dworkin claim to be exceptions) seriously imagine that there is any legal skill that could be taught that would be sufficient to produce the likes of Roe or Roper. As I understand Dworkin's claims that what these judges are doing really is the act of "getting the right legal answer," they require judges to be trained in moral reasoning as much as if not more than they are trained in legal reasoning. This most judges are not, and this in any event would mean that judges were using lots of extra-legal reasoning to reach the "right" result. This would constitute activism, I think, given most classical notions of the rule of law. And I think we can all envision ways we would like the law to be that it actually is not; if as judges we announced that it were so, then we would be being activist.

Activism arises, as the great Henry Monaghan frequently admonishes us, from the view that the Constitution is perfect; once one begins with this premise, then it simply remains for judges to debate perfection. This they are not trained to do, and this way lies activism.

I admit that there are judges and professors who would say that I simply have a too narrow view of what fills out the category "law," and that saying that judges who substitute their own judgment for the law is technically true as a description of activism but not particularly helpful. Acknowledging that there is some force to that argument, perhaps the "perfect constitution" argument of Prof. Monaghan should be amplified or complemented with some consideration of whether judges think the Constitution is living--that its "grand phrases" are more aspirational and are launched on careers of growing meaning. It seems to me that any judge who believes that she is called upon to be an expositor of a Constitution of ever-shifting meaning is committed to a view that her job requires activism from time to time. Justice Scalia seems to think that this is the important divide, given his recent pronouncements on the subject.

What do you think? Does judicial activism amount to anything other than the charge that the judge is wrong in a given case? Or is it, as I suggest, really a claim about the role of the judge or the nature of law--one that intellectually honest folks (including judges and professors) should simply be honest about, the way Kennedy is honest in Roper that the Justices' judgment is playing an important role in the decision?

UPDATE: I would add to the above two clarifications: (1) That a judge would be activist for following preference over law in refusing to invalidate an unconstitutional provision as much as for striking one down. That is, judicial review is part of the rule of law, on which citizens rightly depend. If a judge is complicit in undermining the rule of law by allowing a lawless act of the legislature, then such would constitute activism. (2) There are plenty of ways of being wrong without being activist. Assume, arguendo, that Justice Scalia was wrong to uphold flagburning in Texas v. Johnson. We would not seriously imagine that such was activism, even if it was error. Further, though I think the majority in Casey v. Planned Parenthood were wrong, to the extent they were relying stare decisis they were not activist. Almost by definition, following a prior precedent, though it may be debatable in its wisdom, is not activist. (3) A third point arises from the first two, though it is not a clarification: it appears that my account of activism depends crucially upon the motives of the judge, which makes identifying it subjective in at least one and possibly more than one sense of the term. Is this fatal to the account? Does it really make it no improvement over Potter Stewart's take on pornography?

1 Comments:

Blogger Robert Schwartz said...

prof soloum wrote:"Even the "unenumerated rights" jurisprudence (e.g. the right to privacy at issue in Griswold v. Connecticut and Roe v. Wade) was grounded in the text of the 14th amendment."

My comment was:

Particularly paragraph 8, better known as the blue paragraph, because of its sexually explicit language.

12:17 AM  

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