January 08, 2010

Misunderstanding Judicial Activism

I am routinely dismayed by how little the left understands about the judicial philosophy of the right. This example comes courtesy of The Atlantic:
The week's headline (from The Hill, no less) says it all: "Republicans see the courts as the last line of defense vs. Democrats Agenda"

I am old enough, at the tender age of 43, to remember 1980s headlines like: "Democrats see the courts as the last line of defense vs. GOP agenda." Back then, liberals hoped the federal courts would stem the conservative tide that was sweeping through politics in the Age of Reagan. But now, in the burgeoning Age of Obama, it's conservatives and Republicans who believe an active and forceful judiciary is necessary to thwart the "tyranny" of the current majority.

So much for their old saw about "judicial activism" being such a bad thing. The same folks now tripping over themselves to get into court over health care reform were nowhere to be found during the eight years in which George W. Bush's lawyers and strategists were undermining the rule of law (over detainees, torture, domestic surveillance, and the politicization of the Justice Department, to name just a few).

There is 'judicial activism' and there is 'judicial activism'. The left doesn't seem to understand this. Every time a law is struck down does not mean that there was judicial activism afoot. The Constitution says very specific things about what the government can and can't do. For example, striking down a law that forbid minorities from being employed as bankers would run afoul of the Equal Protection clause. No one would see the striking down of this law as an act of judicial activism, except maybe now under the left's definition of the phrase. As conservatives have gained ground with the public by pointing out judicial activism, the left has attempted to co-opt the phrase in an effort to gain traction with the public. But, when you look at the actual arguments put forth, such as the one excerpted above, it makes little sense and shows how little they truly understand the right.

The term judicial activism was coined in a 1947 Fortune article. See Randy E. Barnett, Constitutional Cliches, 36 Cap. U. L. Rev. 493, 493-94 (Spring 2008). The author, Arthur Schlesinger Jr., described the judicial activists as a “group [that] regards the Court as an instrument to achieve desired social results." Id. This definition most accurately comports with the idea put forth by conservatives of judicial activism.

I personally think the term is thrown around a bit carelessly and excessively, but that shouldn't excuse journalists from properly representing the conservative use of the phrase when attempting to point out conservative hypocrisy. It seems there is a growing, conscious misuse of the term that threatens to undermine its public meaning and desired effect.