Everyone seems to oppose judicial activism these days. If you don’t like the role the courts are currently exercising, you find a way to call it “activism” and argue that the change you want would be “restraint.” But if the status quo pleases you, you insist that what the judges are doing is not “activism,” rather, nothing more than what the law requires. Or you concede the existence of activism—but contend that changing things will only unleash a new form of far more virulent activism.ADDED: My point in this piece is that activism/restraint rhetoric is very common and that you need to realize that it's being used by people who probably have substantive preferences. As such, you've got to expect them to warn you about "activism" with respect to outcomes they don't like and characterize things they do like as a way to avoid activism. I refer to Justice Scalia's recent ACLU debate and to Richard Fallon's SLU lecture (which I blogged about here).
AND: My editor says it's okay to reprint the whole text. Here it is:
Wall Street Journal
By ANN ALTHOUSE
October 21, 2006; Page A9
Everyone seems to oppose judicial activism these days. If you don't like the role the courts are currently exercising, you find a way to call it "activism" and argue that the change you want would be "restraint." But if the status quo pleases you, you insist that what the judges are doing is not "activism," rather, nothing more than what the law requires. Or you concede the existence of activism -- but contend that changing things will only unleash a new form of far more virulent activism.
There was a time -- not all that long ago -- when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we'd say. Now we all seem to love to wrap ourselves in the mantle of the new fashion. But that fashion comes at the price of candor.
Consider abortion. The Supreme Court has begun its 2006 term, and there are two abortion cases scheduled for argument on Nov. 8. Up for decision this time around: whether the federal Partial Birth Abortion Ban Act violates the Constitution.
Back in 2000, the court struck down a state "partial-birth" abortion statute. In dissent, Justice Antonin Scalia mocked the majority for thinking that judges, by locating abortion rights in the Constitution, could put an end to political conflicts over abortion. The court, he wrote, had only "inflamed our national politics" and blundered into "the abortion-umpiring business." His was a plea to abandon activism: The court ought to overrule Roe v. Wade and let the people fight over abortion in the state political arenas.
Justice Scalia often repeats his plea -- about abortion rights specifically and about judging generally. For example, last Sunday, in a televised debate sponsored by the ACLU, he dutifully professed not to "take any public view on whether it would be good or bad" for government to adopt one regulation or another and to limit his work to figuring out whether or not those things other people want are supported by the Constitution. Do we really believe that?
Two days before Justice Scalia spoke Harvard law professor Richard H. Fallon Jr. gave a lecture at Saint Louis University School of Law in which he speculated about the legal landscape if Justice Scalia got his way. Mr. Fallon declined to disclose his personal preference about whether Roe v. Wade should be overturned. Yet he took great pains to amass an astoundingly complex collection of legal issues that could plague the courts in the post-Roe world. (What if one state attempted to regulate whether its citizens could obtain an abortion in another state? Constitutional?)
Don't be fooled, Mr. Fallon said: The courts will remain embroiled in the abortion-umpiring business, with or without Roe. Bemoan activism all you like, but be forewarned: There's even more of it in the world after Roe.
As one of the panelists, I suggested that Mr. Fallon meant for his project to function as an argument against overturning Roe. He resisted: No, it isn't a question of whether the courts should be restrained or whether individual rights do warrant active judicial protection. It is simply an exercise in thinking through the new problems that would arise post-Roe.
Still, the implications are clear. The Supreme Court once imagined -- wrongly -- that enshrining abortion rights in the Constitution would spare us a torturous political fight. It did not, and the court's initial feat of creativity laid the groundwork for decades of controversial cases and contentious confirmation battles. Nevertheless, it is also a delusion to think that matters would improve if the court rescinded those rights. New political fights would spring up and produce a new set of cases that would plunge the courts into even more troublesome legal disputes. The sought-after exit from "the abortion-umpiring business" would not take place. There is no exit.
That easily translates into the conclusion: Roe v. Wade should not be overturned. But it is an oblique argument that avoids speaking directly about the importance or reality of the rights in question. Instead, the argument appeals to our preferences and aversions about judicial behavior. And it assumes that these days we like our judges restrained. With this assumption, we're reconfiguring arguments into plans for -- or intimations about -- minimizing judicial activism.
We can see the same phenomenon this fall in the debate about state constitutional amendments banning same-sex marriage, which are on the ballot in a number of states, including mine. Supporters of the amendment say that we need it in order to get out in front of judges who might succumb to activism and discover a right to same-sex marriage lurking hitherto unobserved in the state constitution.
In response, opponents of the amendment struggle to convince voters that our state supreme court justices are modest and circumspect, and can be trusted not to short circuit what should be a democratic decision-making process. But opponents have a second move. The proposed Wisconsin amendment bans not only same-sex marriage, but also any "legal status identical or substantially similar to that of marriage." That language is perplexing enough to give substance to their argument that the amendment will perversely drag courts right back into the controversy the amendment's proponents are saying we need to keep them out of.
It is worthwhile to devote some attention to the question of what should be determined by judges and what ought to be left to legislators. But the current fashion of framing substantive issues in terms of activism or restraint can only take you so far -- which isn't very. Those who offer advice about finding the way around judicial activism tend to have substantive preferences that affect which pitfalls they choose to warn you about -- and which ones they don't.