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Wednesday, July 06, 2005

"Activists" and "Moderates"

. . . so goes the discussion over the upcoming nominee. Professor Balkin's recent post about activism has prompted another wave of discussion on this idea that the conservatives on the Court are more activist than the liberals. This has been done and redone, and I don't think anyone questions that it is, in fact, true that the conservatives on the Court strike down more laws than liberals.

But, as T. More's response to Balkin notes, this is an uninteresting point. Labeling someone an "activist" based on the number of statutes they strike down is meaningless, since the raw reversal rates say nothing about the nature of the statutes being struck down. Such a simple across-the-board figure is of little help in determining whether a particular Justice is true to his or her role as assigned by the Constitution. The reversal rates method speaks to some dischord between what the Court and what Congress think is constitutional, but it doesn't tell you which is right. The same Court would be activist with a Democratic Congress, but not with a Republican Congress, but it gives the term no neutral meaning to describe their jurisprudence

The word has been successfully muddled; it is, you know, "nothing but fluff."

We are told to prefer, instead, a "moderate." Hmm. Robert Bork discussed this recently in an interview regarding Justice O'Connor:

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.

KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.

BORK: I wish you would stop using the word "moderate." But go ahead.

KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.

BORK: I would call it activist.

Bork is, in my mind, absolutely correct. "Activist" and "Moderate" are the same thing, although I guess a moderate may be somewhat less of an activist. It's probably too late in the game to save the word "activist," but if it is to mean anything (since Balkin, et al.'s method is useless) it must mean what Bork takes it to mean--a judge who departs from what the actual Constitution tells them to do.

UPDATE: It keeps coming. Kim Lane Scheppele on Balkinization compares the amount of invalidation by our courts to courts of other countries and concludes with an explanation of why we think that our courts should do "very little." Again, "activism" doesn't (or at least shouldn't) be determined solely by the quantity of statutes struck down, but by what mechanism they are being invalidated. <

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