An article in today's New York Times about the continuing Supreme Court confirmation process discusses the degree to which "ideology" should or does play a role in judicial confirmations. In the course of this discussion, both Democrats and Republicans are accused of hypocrisy in this area, and they are obviously guilty on this point. Virtually all senators claim that ideology shouldn't matter for their own party's nominees, but should for the other party's. It goes on to discuss the question of "judicial activism." The Times quotes extensively from Professor Lee Epstein of the Washington University in St. Louis School of Law, who says many interesting things. The point that caught my eye was Professor Epstein's statement: "I told my class the other day I have no idea what judicial activism is. Maybe the best definition of a judicial activist is a judge you don't like." Some 50 years ago, George Orwell argued in a fantastic essay entitled "Politics and the English Language" that political manipulation had left many English language words without meaning: in particular, he claimed, words like "democratic" had come to mean "good" and words like "communist" or "fascist" had come to mean "bad" so that these words were no longer descriptive statements about governments, but merely value judgments. So I pose the question: does the phrase "judicial activist" have a descriptive content today? Did it ever? I believe that it did, and perhaps still does, but the left and the neo-Cons are today attempting to twist it for political purposes in much the way "democracy" and "communism" were once twisted, leading to precisely what Professor Epstein describes: a situation where the term "judicial activist" merely means "a judge I don't like."
The role of the judiciary branch is to resolve legal disputes. It is not, we can all agree, to make new laws. However, by the very nature of this purpose, the court will come across areas where the law is ambiguous. Courts have often ruled that excessively ambiguous laws are invalid. How should legal disputes be resolved by courts, and does interpreting the law really differ from inveting it?
Well, it depends. In an article I posted on earlier, Ronald Dworkin argued that in order for there to be a difference between interpreting the law and enforcing one's own ideology, one must have a comprehensive theory of law, and Dworkin is absolutely right.
The most fudamental principle of a free society is lex est rex: the law is king. That is, the first prerequisite for freedom is that the law be publicly available, predictably interpreted, and changed only according to specified and well understood processes. This is why the Constitution is so emphatic in it's prohibitions on ex post facto laws, bills of attainder, etc. An individual is more free when he is systematically and predictably persecuted according to law (as when, for instance, he is not allowed to enter certain buildings due to his skin color) than when he is subject to the whim of some ruler (as for instance when a dictator may order, after the fact, the imprisonment of all persons of a certain skin color who have entered certain buildings in the past, although they had no way of knowing they were prohibited from entering). The fear of a ruler's caprice undermines freedom even when the ruler does not in fact act in a discriminatory or excessively restrictive way.
However, there is the problem of the difficulty of interpreting texts. How can the judiciary interpret the Constitution in such a way that they will not be capricious and so undermine freedom? As Dworkin's argument shows, only by having a comprehensive theory of legal interpretation which restricts the application of the judges' policy preferences. "Judicial activism" occurs when a judge "legislates from the bench," as we say - that is, when he simply makes up laws according to his preferences rather than according to his unbiased interpretation of the law. Statements like Professor Epstein's stem not only from the manipulation of language by leftists and neo-Cons but also from the postmodern ideology that doubts whether texts have objective meaning at all. In law, they must have objective meaning, or we cannot have a free society.
Today, the left wants to say that anyone who overturns legal precedent is an activist. The right wants to say that anyone who supports liberal policies is an activist. In reality, judges who are not activists must meet two criteria: first, they must hold and consistently apply a comprehensive theory of legal interpretation, and, second, this theory must allow the legislative process to alter the judges' interpretations in predictable ways. To understand this, consider Justice Scalia. Despite his witty remarks and an intellect much sharper than most of us doing the predicting, he remains one of the most predictable judges on the court. He believes in a particular manner of interpreting the Constitution and he sticks to it. Want to change his decisions? Amend the Constitution, and you can trust him to follow it. Justice O'Connor, on the other hand, is an activist. Her decisions are completely unpredictable (more so, in fact, then most judicial activists, because her policy preferences are also rather unpredictable), and there is no way to tell how a new statute or constitutional amendment will affect her decisions, if at all.
So far, I have seen no justification for how "living Constitution" theories can avoid judicial activism. It simply does not provide a comprehensive theory of interpretation that can be used to insulate a judge's decisions from his policy preferences. A "living Constitution" theorist could continue interpreting the Constitution however he wants, even after an amendment was written with the express purpose of making his interpretation incorrect. If the Supreme Court is filled with this kind of capricious interpretation (as, indeed, to some degree it already is), it will fundamentally undermine our freedom. Therefore, if a judge's policy preference's are relevant to his confirmation, he should not be confirmed. Rather, his overall theory of interpretation and his ability and willingness to consistently apply it should be the determining factors in his nomination. In this way, and only in this way, can the phrase "judicial activism" continue to be meaningful, and only in this way can we preserve our freedom.Posted by Kenny at November 4, 2005 12:59 PM
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