September 11, 2006

Conservative Judicial Activism?

The New York Times has a piece today on conservative judicial activism. The article claims that, not only does conservative judicial activism happen, but it is more common in the US today than liberal judicial activism. However, I have to wonder if 'conservative judicial activism' is even possible. My disagreement with the Times is, I admit, in large part semantic, because the terms 'conservative,' 'liberal,' and 'judicial activism' are all horribly equivocal, but they are also all emotionally charged terms, and I can't stand the kind of rhetorical trick the Times seems to be trying to pull here.

The biggest mistake made is that the definition of judicial activism used is positively idiotic. The article says,

Because judicial activism is a vague concept, [the researcher cited] applied a reasonable, objective standard. In the study ... justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court�s own precedents."

So, according to the Times, and the researcher it cited, a judge is an activist if he ever strikes down any law or overturns any precedent. Isn't this definition a little problematic? When people use the term 'judicial activist' I take them to mean a judge who uses his position to advance a political ideology at the expense of the rule of law. I have fleshed this out at greater length in an earlier post, also in response to a Times article. But striking down statutes or overturning precedents does not in itself undermine the rule of law, rather, it upholds it, because our legal system is such that laws are supposed to be struck down when they contradict higher laws - such as the Constitution - and precedents are supposed to be overturned when they are wrong. That the judiciary does these things is a fundamental part of our legal system. What the Times has done is to define judicial activism in such a way that it is, as they freely admit, "not necessarily a bad thing," but this blatantly contradicts our ordinary usage of the term, and is being used to whitewash the practice of ruling according to political preferences rather than according to the law.

Again, as I said, 'conservative' and 'liberal' are horribly equivocal terms as well. 'Conservative' can mean either 'upholding the status quo' or 'right-wing,' and, likewise, liberal can mean either 'opposing the status quo' (i.e. 'progressive') or 'left-wing.' Now, obviously it is possible for any judge, regardless of whether we call him liberal or conservative, and regardless of what meaning of liberal or conservative we are using, to be an 'activist' in the Times's sense. It is also obviously possible for a judge to be an activist in the ordinary sense regardless of whether he is on the right or the left of the political spectrum. However, it is not trivially the case that a judge could be an activist in the ordinary sense regardless of where he was classified according to the other meaning of liberal and conservative. That is, a judge who is an activist in this sense is necessarily 'liberal' in the sense of 'opposing the status quo' because he is a judge who alters the meaning of the law, and the meaning of the law is a type of status quo. It may be objected to this that the law might be such that certain parts of it were supposed to change with time and circumstances without it being amended and a judge who resisted that might be both more 'activist' in the ordinary sense and more 'conservative' in the status quo sense than a judge who supported it. However, such cases in our system of federal law seem to be few and far between (one example, though, might be the meaning of the phrase 'cruel and unusual punishment' - a judge who said that placing an offender in the stocks was not cruel and unusual punishment might be a status-quo-conservative and an activist according to some reasonable theories, if the framers viewed putting someone in the stocks as not being cruel and unusual punishment).

I also highly doubt that right-conservative judges are more activist than left-liberals in America today, for simple historical reasons: the Constitution was framed by classic liberals - Lockeans - and this political ideology is certainly right-of-center in America today. For this reason, judges who respect the Constitution as written will generally make right-of-center rulings (of course, they could theoretically have a theory of judicial interpretation that met my standards for non-activism which would cause them to vote to the left of the framers' intent, but the three top contenders among such theories - originalism, original intent, and strict constructionism - will all entail right-of-center rulings). As far as the interpretation of statutes which they hold to be consistent with the Constitution, I would imagine, again, that non-activist judges would appear to be right-of-center most of the time, due to the fact that, despite the McCarthy and Bush eras, the twentieth century saw a net movement to the left. That is, I imagine that the country is probabaly today further to the left, on average, than it was at any time before 1960, so judges that interpret older statutes correctly will appear to be right-of-center. However, in interpreting the laws made during, for instance, the Clinton or Kennedy administrations, non-activists will probably take the leftward rulings more often than the rightward ones, since the 'center' has moved further right than it was in those periods. The same sorts of considerations will apply in the upholding or overturning of precedents.

In sum, the truth or falsity of the Times's claim that conservative judicial activism is today more common than liberal judicial activism is, unsurprisingly, highly dependent on the intended meanings of the highly equivocal terms 'liberal,' 'conservative,' and 'judicial activist.' However, on the most reasonable definitions of these terms, it is highly unlikely that the claim is in fact correct.

Posted by Kenny at September 11, 2006 10:18 PM
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Sandra Day O'Connor doesn't think anyone has a real account of what judicial activism is supposed to be. She thinks it basically means a decision the speaker disagrees with. I tend to think she's right about that, at least on the popular level.

She says this in part in response to conservative critiques of some of her decisions. But then what follows from what she says is that of course conservative judicial activism is more common when more judges at the top levels are conservative (which I think now is the case, at least if you count them as conservative if they were appointed by a Republican president and liberal if appointed by a Democrat).

Posted by: Jeremy Pierce at September 17, 2006 7:04 PM

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