July 16, 2007

Defining 'judicial activism'

Jeffrey Rosen's piece in The New Republic - "Will John Roberts ever get better?" - declares forcefully that "Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint."

Ed Whelan has already posted an incisive commentary on Rosen's piece. But it strikes me that this exchange is just one in a series of similar writings and responses that has recently come to the forefront of the attempt to characterize the new Supreme Court.

Whelan points out that
"Rosen is certainly correct that many, including some conservatives, misuse the term 'judicial restraint.' But Rosen counters that misuse with his own misuse, his continued misguided advocacy of a 'neutral meaning' of the term—under which any vote to strike down legislation, even when clearly compelled by the Constitution, is not an exercise of judicial restraint, and any vote, no matter how wrong, to leave legislation in place, is an exercise of judicial restraint."
This is unassailable reason, and it's strikingly similar to an argument that Ilya Somin made last week in response to Andrew Cohen's misuse of the terminology of 'judicial activism'.

Somin writes,
"Cohen's argument equates conservative criticism of 'judicial activism' with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech."
These charges of 'conservative judicial activism' have become a favorite refrain among liberal critics of the outcomes of the most recent Supreme Court decisions. They take great pleasure in co-opting conservative criticism of liberal judicial activism, and instead leveling those charges against Justices Roberts, Alito, Scalia, and Thomas. But as Whelan and Somin have taken the time to point out, critics like Rosen and Cohen simply miss the point, and misapply the terminology of 'judicial activism'.

As Clint Bolick wrote, back in April of this year, "When judges swear fealty to the Constitution, they must be mindful of the danger of exceeding the proper confines of judicial power, but as well the even greater danger of abdicating it."

The act of striking down an unconstitutional precedent might well qualify as 'judicial activism' in the 'neutral' sense of the term that Rosen wants to use. But as Somin puts it, "failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits." This is the correct understanding of the proper judicial role, and false charges of 'judicial activism' only highlight Cohen's and Rosen's misapplication of the terminology.

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