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What is judicial activism and do we need the concept?

Today, I attended a debate sponsored by the Federalist Society about “judicial activism” between our friend Ed Whelan and Prof. Jeffrey Rosen. At the heart of their debate was a disagreement over the definition of judicial activism.

Ed defined judicial activism as a form of legal error – the type that occurs when a court wrongly decides that a statute is unconstitutional. Rosen defined it as the judicial overturning of a statute as unconstitutional, whether or not the decision is correct.

Rosen described his definition as “neutral,” and so it seems. But despite his initial stipulation that judicial activism can be a good thing or a bad thing in a particular case, he immediately attacked the Roberts court for judicial activism, citing the number of times it has overturned statutes where the losing side had credible (but not necessarily correct) arguments. And he urged Ed to agree that, in the name of judicial restraint, the Supreme Court should uphold Obamacare because the statute was legislatively enacted and two respected conservative court of appeals judges have found it constitutional.

Both of the definitions offered today have disadvantages, it seems to me. The disadvantage of Ed’s definition is that leaves us unable to say whether judicial activism has occurred in a case until we have decided whether we agree with the decision. Normally, we like definitions to be easier to apply. And once we conclude that we disagree with a court decision, say because it violates principles of originalism, haven’t we already sufficiently condemned the decision without adding the charge of “judicial activism.”

But Ed suggested that “judicial activism” may be an especially pernicious form of legal error because, compared to “judicial passivism” for example, it may be particularly difficult for the political branches to overcome the error. Thus, there may be some intellectually honest utility in invoking the charge of judicial activism as Ed has defined it.

On its face, Rosen’s definition seems “neutral” and intellectually honest. But what is its utility? If all “judicial activism” means is that the court overturned legislation, then why not just say “the court overturned legislation,” instead of saying “the court engaged in judicial activism.”

The reason, of course, is that labeling a decision “activist” carries negative connotations. It’s a way of suggesting that a decision was improper without showing that it was wrongly decided (unless all decisions that overturn legislation are wrongly decided, a position that no one, including Rosen, agrees with, though President Obama flirted with it). Indeed, Rosen’s comments about the Roberts court, as described above, suggest that, from his standpoint, this is the utility of flinging charges of judicial activism.

Accordingly, if “judicial activism” is defined Rosen’s way, the concept should not be invoked. If it is defined Ed Whelan’s way, the concept isn’t very helpful, but may have some marginal utility.

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