Judicial Activism vs. Judicial Activity

Over at Balkinization, Jack Balkin has posted another analysis of activism that finds the term wanting. I think that this trades on a failure properly to consider the role of the judiciary in our system, as what should be the "least dangerous branch." The judiciary is not meant to have legislative or executive initiative in our government; rather, it is meant to police the boundaries of the enumerated powers of the other branches by faithfully interpreting the laws especially in light of the Constitution which sets numerous internal and external limitations on the powers of the government.

I posted this comment in reply to Balkin:

I don't think much turns on the words, so I can agree with your conclusion. But I have always thought that the thing an "activist" judge does is not "something rather than nothing" but deciding cases contrary to the law. To be sure, the most egregious cases come when rights get made up out of nowhere (or out of emanations and penumbras, if you prefer); but it would be just as much activist for a court to refuse to protect individual liberties that have been constitutionally (or legislatively) protected out of a judge's own disagreement with the received law.

It is that arrogating to oneself the power to legislate that constitutes activism. That is why the whole notion of a living constitution is an activist one: well, of course the framers didn't protect reproductive autonomy, but they announced principles that we in our wisdom (because history only moves progressively--we're the most enlightened people ever, ipso facto!) can say today require this or that new right (Roe, Lawrence, etc.).

Thus, the Kelo court's decision was activist, and knowingly so, in relying on "evolving" circumstances that make "public purpose" a better clause than "public use", the one that is actually there. This is a conscious, explicit, "living constitution" kind of activism, and it results in allowing a law to stand. In a government of enumerated and divided powers, it is crucial that judicial humility result in the policing of Congressional and Executive power according to the enacted wishes of the legitimate lawgiver, not the evolutionary editing of judges.

To my mind, Justice Thomas's apparently limitless deference to the executive in matters arising in war constitutes activism (compare his opinion with Justice Scalia's in Hamdi, for instance). Again, that's "passivity" on Thomas's part in that he defers to the executive, but it is an activist pursuit of a take on the war power of the executive warranted by neither the text nor the history of the constitution as he usually applies those terms. {End}

To this I would only add that Balkin, led more by results than by rigorous analysis of the principles, I am afraid, fails to see what Henry Monaghan demonstrated clearly about Bush v. Gore, namely that it does not represent a threat to federalism properly understood, even though it involved a relatively rare review by the U.S. Supreme Court of state court determinations of state law. I would further add that much of the "cleaving" that Justice Thomas would do to existing laws and regulations I would support, as it would undo the activist abetting of unconstitutional lawmaking that prior courts had undertaken. That would be a lot of judicial activity, but it would not be activist. Thus, while Balkin properly notes a number of forms of conservative activity (such as its takings clause jurisprudence), to note such is not always to identify activism properly understood. Are conservatives sometimes activist? Of course. But we should be able to distinguish judicial activism (acting legislatively, for the most part) from judicial activity (carrying out the proper judicial function, which will involve striking down invalid laws).

UPDATE: I append also this comment I posted to clarify my reply to Balkin's point about Bush v. Gore (and his idea that Kelo is a betrayal of federalism for the conservatives): The reason for my raising this is that, as in the analysis of activism, where it is a mistake to assume that judicial review simpliciter constitutes activism, so also when it comes to federalism we should not presume there is an absolute deference owed to states by federalists, lest they open themselves to charges of selective application of principle. Both the meaning and application of activism and federalism admit of and require more nuance than that.