October 21, 2006

"No Exit: Judicial activism is inevitable."

You'll need to be a Wall Street Journal subscriber to read it, but that's the title of my op-ed today. First paragraph:
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
No Exit
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.


Cannibal Lecture said...

My question would be:
How do you steer judicial activism towards the intent of the framers of the constitution as opposed to the intent of the framers of popular culture? As a citizen, the tools for doing so should be at my disposal however rusty they may be from long disuse.

Brent said...

Or you concede the existence of activism—but contend that changing things will only unleash a new form of far more virulent activism.

So what?

If restoring a decision to it's original Constitutional intent brings about different results and cases, so what? At least we are back on track to the way things should be. That position is not activist.

Those of us opposed to Roe say bring it on.

Slac said...

Better than judicial pacifism.


Edward said...

I don’t subscribe to the WSJ, so I can’t read Ann’s entire column.

Based upon Ann’s blog post, however, her attitude toward judicial activism seems too easy intellectually to be correct. Her position is also so general and sweeping that it doesn’t provide much help in resolving the knotty problem of what judicial activism is and what it isn’t.

The debate over judicial activism resembles debates about what is “political” and what isn’t. You can define “politics” so broadly that it encompasses virtually everything in life. If you do that, though, the term “politics” loses all meaning, because it expands to cover anything and everything.

I think there’s a fundamental contradiction between Ann’s complaint about politicized art, which is a complaint that I share in many respects, and her (apparent) view that virtually any court decision can be criticized as judicial activism.

If one can find a reasonable standard to distinguish between politicized and non-politicized art, then there must be a reasonable standard to distinguish between court decisions that are judicial activism and those that aren’t.

Having said that, let me make clear my own position. I’m not at all a “constitutional originalist” or “strict constructionist.” I think the basis of the US constitution is comprised of grand principles that judges need to apply to modern, oftentimes changing circumstances. That’s not judicial activism. That’s judges doing their job.

Ann indulges in chic intellectual cynicism from time to time, and I think we just have to give her time until it passes from her system and allow her to get back on track to her usual brilliant self.

Brent said...

Ann, in your editorial, you back up your above quote with:

. . . Professor Richard H. Fallon Jr. gave a lecture at Saint Louis University School of Law . . .
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.

Again, I'm having a hard time understanding why that would be "activsm"? If Roe were overturned and a thousand cases were brought to settle various issues of state law, why would it be activist if those decisions were decided by reading the Constitution's original intent?

"Activist judges" has always been shorthand to conservatives like me for judges who "look for a predetermined outcome" when they make their decision. That of course is in the eyes of the beholder.

It appears that there is an "activist" effort by many to change the meaning of the phrase "activist judges" from it's original intent.

Sissy Willis said...

Wouldn't the WSJ make an exception to let you publish the whole thing on your blog? If not, it seems a little short sighted.

Gerry said...

Let me throw into the mix the conservative impulse towards fatalism.

Of course, it is inevitable that some judicial activism will be present in the courts. Leave aside that a judiciary free from judicial activism is an ideal that is not held by all; even if there was unanimity in holding that ideal, since humans are flawed creatures, the ideal would never be recognized.

It does not follow from this, however, that the ideal should be scrapped. Holding the ideal can lead towards judicial activism being minimized. I, for one, believe this to be a worthy goal. Undoubtably, some forms of judicial activism bother me more than others, and some I probably subconsciously cheer. I believe I would rather risk losing those instances to minimize the instances where I believe judicial activism has been detrimental to our nation.

I find it analogous to Christianity. Christ set the ideal; a life without sin. We should strive to attain this. However, we are flawed creatures, and sin is inevitable. That does not mean that we accept sin, or reject Christ's ideal (including to love the sinner but hate the sin). It just means that the goal is never to be attained, but the striving towards it is incredibly beneficial, both for the individual and for society.

Anonymous said...

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.

Wouldn't it be better intellectual manners to allow for the possibility that they're speaking loosely, while nonetheless expecting them to use the word "activism" meaningfully (until such time as they prove otherwise)?

jeff_d said...

I think the op-ed makes a useful point about the limitations of the phrase "judicial activism." Properly understood, I think judicial activism means judges using their rulings to effect political results beyond what is fairly necessary to decide the case at hand. So Griswold and Roe are activist because they involved the creation of a new set of extra-constitutional rights as a pretext for the authors' policy preferences. By contrast, the many opinions striking portions of the various campaign finance laws are not activist, because those laws clearly had constitutional defects that even many of their proponents recognized (but lacked the political will to correct themselves.)

But the real definition of judicial activism is little understood, and I'm not optimistic that will change. So two cheers for moving away from framing the debate over judges in terms of activism and restraint.

What I find less helpful in the Op-Ed is the failure to distinguish between the burden on the Supreme Court specifically and on the courts generally. It is no argument for keeping Roe that courts will face lots of difficult questions if it is overturned. That's why we have many more courts than legislative bodies.

When Scalia complains about being in the abortion-umpiring business, he is referring to the problem created by the nebulous substantive due process concept. That is what turns every regulation in every state into a battle in the larger war over how much protection does the "right to privacy" entail. The problem isn't that abortion regulations are complicated; it's that every issue is a constitutional issue.

In order to think clearly about the consequences of overruling Roe, I believe we need to appreciate the difference between having a lot of issues decided under state law by state courts and having the entire range of legal issues being forced into the substantive due process framework and decided by the nine Justices.

Edward said...

Scalia has turned himself into a bilious little caricature of himself. He threw the notion of judicial temperament out the window years ago. He should be ashamed of himself what with the angry and irresponsible public pronouncements that he’s increasingly prone to make with each passing year.

I’m not stupid. Long ago, I got the distinct impression that the Althouse blog serves as some sort of refuge for worshipers at the shrine of Scalia.

If I’m wrong about that, someone please correct me. I’m not a lawyer, but the excessive number of reverential posts that I’ve read here concerning Scalia convinces me that such is the case.

In the future, Scalia will be a textbook case of how justices and judges should not comport themselves, both in public and on the bench. He’s downright mean, and his meanness vitiates whatever valid points he has to make.

And no, I’m not being mean simply by pointing out his meanness. I’m just stating facts that should obvious to any objective observer.

Zeb Quinn said...

Anyone versed in constitutional law and American history knows or ought to know that the concept of judicial activism leaped into a whole new phase with and since the Franklin D. Roosevelt administration. Those of us who decry judicial activism are really asking for a little more of the judicial temperment and restraint that was extant for the first 150 years of the country.

Gerry said...

"I’m not stupid. Long ago, I got the distinct impression that the Althouse blog serves as some sort of refuge for worshipers at the shrine of Scalia."

An assertion, followed by an assertion that calls the first into question. Impressive!

Jed Sorokin-Altmann said...

What is the alternative to interpreting the Constitution based on a modern standard?

I was in the audience last Sunday when Justice Scalia was speaking before the ACLU's National Membership Conference, and he said that he interprets the Constitution based on its meaning back in 1791, at the time of its framing.

Well, does anyone else see a blatant problem with that? How the hell does he know what the answer was back then? Does he conduct a seance? Use a Ouiji board, mayhaps?

And yes, I'm being glib. I'm sure he looks at selective historical writings. I say selective, because back in 1791, they had as many fights over the Constitution as we're having now. Justice Scalia is actually pretty good on First Amendment issues, but if he was really taking a 1791 stance, the First Amendment would be an ink blot on the Constitution. The Federalists and Anti-Federalists were threatening newspapers, locking up editors, and locking up each other! Hell, the first arrest and conviction under the Sedition Act was Congressman "Fighting Matt" Lyons of Vermont.

When there are two or more 1791 views, what does Justice Scalia do? Pick the one that fits the conservative view and call it originalism. Justice Scalia IS a judicial activist, he just keeps it hidden in pretty wrapping paper most of the time.

Another issue with Scalia's method of interpretation is how to handle issues that the framers never considered. If the Constitution is a framework designed for modern interpretation, we're fine, but if we need to look at the original Constitutional intent, the Constitution is not only silent on abortion, it is silent on airplanes. Cars. Cameras. Machine guns. Nuclear weapons. Afterall, an original understanding was that the government could not prevent you from having the weapons of the day-if we do not look at it from a modern standpoint, the 2nd Amendment, as understood by the Framers, meant that I should be allowed to have a nuclear weapon if I can get my hands on one. Cars and airplanes should be treated the same way as horses or walking. And gosh, how on Earth do we handle newer technologies like the internet that don't have a 1791 counterpart?

And my last critique is that Justice Scalia sometimes drops his veil of original intent to nakedly act as a judicial activist. Bush v. Gore is a tired example, but it's an example, but I prefer to look at his opinion last term in Hudson.

Hudson struck down the exclusionary rule in cases where police violated the 4th Amendment by failing to knock, as constitutionally required. One of the main pillars on which Scalia rested his decision, was the notion that police departments have evolved and become more professional in the past 50 years. Wait-let's hold up. First, more professional in the past 50 years? LA's Ramparts scandal and the OJ Simpson debacle, Boston and the Charles Stuart case? Waco? Ruby Ridge? The ongoing civil suits over the sickening police misconduct in Tulsia, Texas? The NYPD shooting an unarmed black man reaching for his wallet or raping a suspect's anus in the station house bathroom with a plunger? There's a whole host of similar examples I could hold up, but the point is made. Second, shifting standards of police professionalism is incompatible with a standard of constitutional interpretation based on the intent of the framers. Why is it wrong to judge death penalty cases on the evolving, shifting standards of decency, but it is OK to give police a blank check to make every search a no-knock raid (violating the intent of the framers and overturning a rule that goes back to the Magna Carta)?

Once again, Conservatives have proven that they are the masters of framing an issue. Activism versus original intent looks good on paper. But it is also a theory that is paper thin.

Ann Althouse said...

Edward: My op-ed is not pro-Scalia. It is skeptical of his pronouncements about what he's doing.

Zeb: The FDR appointees most notably turned away from the judicial activism of the Lochner era. If there's one thing anyone who knows anything about judicial history knows, it's that.

Edward said...

Gerry: All I meant was that, while there is a variety of political views expressed in the Althouse threads, I noticed long ago a core of posters who seem to really admire Scalia.

I know I'm not the only one here who dislikes him.

I also knew that my last post was probably going to offend those here who think Scalia is one of the greatest SC Justices ever.

That's what I meant when I said, "I'm not stupid." I knew I was going to rub some people the wrong way.

Nevertheless, I'm also open-minded enough to be willing to be proven wrong about the attitudes toward Scalia here.

Really, am I wrong when I say that a large number of you here think that Scalia is great, the best SC Justice that we currently have?

Gerry said...


My impression is that there are people here who admire Scalia. I am one, even though he is not my favorite Supreme Court Justice. In fact, he has fallen to #4 on the all-important Gerry Favorability Index.

My impression is also that there are people here who do not particularly care for Scalia.

And my impression is that there are people here who like him in some regards and dislike him in others. I believe our host fits into that category, although I could be mistaken.

I could also be mistaken about your attitude, but I have inferred from your comments that you believe there are way too many Scalia fans here, and that if there is more than a slight percentage of people holding that opinion of him, that is too many. If so, I think that what you are looking for is the opposite of what you seem to think this place is-- you want a place where everyone shares your disdain for Scalia, and since here does not fit that description, you have ascribed to it the opposite of what you want.

But that could just be me over-analyzing it.

Too Many Jims said...

I thought the WSJ let their opinon pieces out there for free. Sad they don't always. In addition to Ann's piece, I wanted to read Peggy Noonan's "The Politics of Dancing". Who knew she was such a fan of 80s pop music.

Gerry said...

Jim c,

The Politics of Dancing piece is freely available on their site here.

Zeb Quinn said...

Ann, I don't agree that Lochner was judicial activism. I know that its detractors like to say that about it, it doesn't fit that way. Striking down a statute deemed to be unconstitutional or on other reasoned grounds is not activism. It may be in error, or worse, but it's not activism. Activism is finding or creating powers or rights that aren't there in any form, or in any fair reading of what is there.

Too Many Jims said...


Thanks for the pointer. I do like Noonan's writing (though I did not think this was that great).

Brent said...

I fear the court with liberal activists because of the damage that it has done (Roe for example) and will continue to do to the national fabric.

I am not fearful of a court full of "Scalia's".

chickelit said...

Isn't it obvious from other threads that Edward dislikes Scalia for intensely personal reasons?

Richard Dolan said...

Ann says that the activism/restraint distinction is more rhetorical than real as a framework to think usefully about the judicial role. True enough, in the same way that the rights/privileges distinction is not often helpful.

As for the "no exit" idea, it's true only in the sense that there will always be difficult cases coming before the SCOTUS where it will undeniably be incumbent on the Court to decide the dispute. And in doing so, the Court will inevitably be deciding and imposing policy matters, "making law" as its detractors often say. The "no exit" idea can go off track, however, where it slides into an expectation that there should be a judicial remedy for every stupid, harsh or unfair law adopted by a legislature. (Ann doesn't take the "no exit" idea that far, and I doubt she would.) Alas, nothing in the federal Constitution provides that legislatures are forbidden to adopt stupid, harsh or unfair measures, or authorizes a federal court to substitute whatever it deems intelligent, mild or fair in its place.

It is very hard to come up with an interpretation of the Constitution that doesn't accept the paramount importance of the political branches in making and framing social policy in the broadest sense. They come first in the constitutional scheme (literally as well as in every other sense). Scalia's jurisprudence is all about accepting that reality, and the corollary consequence that the judiciary has no comparable role. While I don't have any overarching constitutional theory to offer here (and am very skeptical of anything of that sort in any event), I think the majority of cases where courts have overstepped the proper bounds of their authority involve two paradigms: first, a constitutional ruling relying on the Due Process clause, where the case itself is not about a denial of notice, process or an opportunity for a hearing; or, second, a constitutional ruling relying on the Equal Protection clause, where the case doesn't involve the kind of racial classifications that the Civil War amendments were about.

If the SCOTUS would get out of the constitutional adjudication business in those two paradigm classes of cases, I think the great bulk of the problem that Scalia's originalist jurisprudence is meant to combat would cease to exist.

Of course, one consequence of that view is that people would have to come up with another way to rectify stupid, harsh or unfair legislation. On that one, I think Ann's parallel post today, asking whom she should vote for, points the way.

Maxine Weiss said...

People that don't like Justice Scalia usually have a problem with anti-Italian bias.

Justice Scalia, himself, has alluded to this, and said that he got called epithets like "Dago" and "Wop" etc when he was growing up.

I won't read the Wall Street Journal because it's Pro Illegal-Immigration.

Peace, Maxine

Steve Burri said...

Raymond Kraft has offered an idea to which Ann has alluded. Here's the foundation of the rest of his article: "But there is a Third Way here - and that is for Congress to debate and define, by legislation, the controversial and undefined terms in the Constitution, such as "an establishment of religion." I cannot find or think of any reason why it would not be within the power of Congress to do so, and it would not require an amendment of the Constitution, so long as the legislated definition was consistent with a plausible and reasonable reading of the Constitution. Congress would not remove or change the phrase, "an establishment of religion." It would simply define the phrase - deciding what "an establishment of religion" means - something that the courts have been grappling with for decades. This might be a long and controversial debate in Congress, but it would be a good debate for us to have.

And this would not be unconstitutional, as long as the legislative definition of "an establishment of religion" was consistent with the apparent intent of the First Amendment - which is, obviously, to protect the broadest possible scope of religious freedom, and to prohibit an official or State religion."

Cedarford said...

I disagree that returning abortion to States to decide on would generate an explosion of judicial activism or other matters where the Federal Courts have tried stamping a 50-state imprimatur on matters of srong regional differences.

States have shown they can deal with tremendously vital issues alone or in consortia with other states better than a panel of lawyers can. Western water rights, lottery and commerce issues, transportation.

Skeptics say...well...civil rights proves the Feds or Federal Courts always know best..

But that was one issue. It appears the States - through legislatures, direct vote of the people, local expertise - generally do better than removed, unaccountable courts.

As time goes by, even the Courts effort to "Lead" society on civil rights is beginning to be questioned in certain circles due to the ensuent decline of cities, US education, and in many ways the downfall of a large sector of the black family...

If the States were progressing well, efforts by court ruling elites to "push" progress seems to lead to continuing controversy that is at odds with other controversies the people and the legislatures have managed to resolve with a measure of acceptance and finality absent in court fiats.
The other matter of great concern is 3 members of the Court that not only creatively fashion orders of rule over the American people not found in the US Constitution...but who have gone past that in claiming their authority derives in part from UN Conventions and foreign Constitutions. That would be the Transnationalist Wing - Ginsburg, Breyer, and Kennedy - who can't wait to high-tail it to Europe for their long summer vacation to "learn" the latest cutting edge international jurisprudence.

If Roe goes as an extra-Constitutional concoction...it will be far easier to block the Federal Courts from further use of emenations and penumbras found outside the Constitution and existing US law.

Edward said...

The idea that I dislike Scalia due to his Italian ancestry does not merit a response, because I’ve never given the slightest indication of such bigotry. I promise you that such bigotry is completely alien to me.

Scalia is simply a very controversial justice, as I’m sure most contributors to this thread already know. The controversy he stirs up has nothing to do with his ancestry and everything to do with 1) his judicial philosophy, considered by many to be extreme, and 2) his combative character.

An interesting question is whether these two causes of his controversial image are themselves connected on some profound level. I suspect that they are.

As I suggested earlier, I believe his combative character undermines the credibility of his judicial philosophy, and his combative character may even be a natural, almost inevitable outgrowth of his extreme judicial philosophy. Or vice versa.

Ann Althouse’s column in the WSJ reveals that Scalia is even combative toward his colleagues on the Supreme Court. She talks about him mocking the other justices. Scalia constantly accuses the other justices of various kinds of bad faith when they reach conclusions different from his own.

I often wonder whether Scalia himself might not be the justice most guilty of bad faith. He swears that he reaches his decisions based not on his personal likes and dislikes, but instead based on his “originalist” judicial philosophy.

Yet everyone who knows about Scalia strongly suspects that, in his personal beliefs, he is a social conservative of the first order.

Isn’t it just a bit too convenient that his “originalist” philosophy always seems to produce the judicial decisions that mesh best with the social conservatism that everyone ascribes to him?

His originalist philosophy might just be a fancy way to disguise his intellectual laziness and his desire to enforce his musty old social opinions.

Bobby Dias said...

I am not taking sides when I say that I see one person,Bush, in a position of great visibity, does something in the activism area: criticize some people and call them names such as "the axis of evil" and "the devil and other names- when that person or persons
says something against him. Against their attempts to speak their opinions, such as the President of Venezuela. Now matter
what the guy said, I think Bush should have respected the guy's freedom of speech right here in the United States of America. But, no- Bush got very nasty and encouraged others to do the same. He has done the same withe the courts- so there is no issue, to me, why there is much against any kind of activism- because of who many look up to. A big baby who has to have anything he wants.

mtrobertsattorney said...

Edward apparently likes the notion of an evolving constitution. But he fails to address two of Justice Scalia's points? How does Edward know in what direction the consititution is evolving and why does he think unelected judges are the most qualified to determine what this direction is? If the constitution is evolving, it would seem that the legislature is the most authoritative source to consult for where it's headed.

I suspect that there is a direct correlation between where an evolutionist says the consititution is moving and the deeply held moral and political opinions of the particular social group with whom he socializes.

To me, judicial activism is simply a description of those situations where a judge enacts his own personal agenda under the guise of a judicial decsion. A theory of consitiutional evolution will obviously be very helpful to such a judge. As for the very best example of activist judging, I don't think it is Roe v. Wade. Rather,it's Scott v. Sandford.

Edward said...

I hope I didn’t offend anyone by calling Scalia’s social opinions “musty” and “old.”

I’m sure many of you share Scalia’s opinions, and I certainly do have respect for people who disagree with me in this area.

I just think that Scalia and his legions of fans are deluding themselves about the way he arrives at his judicial decisions. His judicial philosophy really is extreme and ill-suited to our day and age.

In her recent debate with Scalia, Nadine Strossen did a good job defending the concept of an evolving constitution, and no, it doesn’t mean that elitist (or to use Scalia’s term, “aristocratic”) judges get to interpret the constitution in accord with their own personal prejudices.

I see the relationship between the three branches of government as a dialogue, and the judiciary can and should take into account a large number of factors in reaching their decisions in controversial areas. New scientific and social scientific information, new and more accurate interpretations of history, and significant and long-term cultural developments should all be carefully weighed by judges in reaching their conclusions.

If judges make a mistake, the other two branches certainly have the power to counter and, eventually, to correct those mistakes.

Unlike Scalia, who seems unable to admit that he’s ever made a mistaken judgment as a justice, the other Supreme Court justices readily admit that possibility. I recently saw an interview with Breyer and O’Connor where they said exactly that. That kind of modesty is healthy in our leaders.

In our rapidly evolving society, it’s far better to have a judiciary that’s flexible and willing to innovate (only when there’s abundant evidence in support of such innovation), rather than a judiciary that spends its time trying to read the minds of men dead for 200 years.

That’s why I call Scalia’s judicial philosophy intellectually lazy. His absolute refusal to take into consideration legal developments in other countries is a prefect example of his intellectual laziness. His refusal in this area is not even an “originalist” attitude to have in terms of the US constitution.

Our founders were heavily influenced by political developments in other countries, especially Britain and France. Why must today’s Supreme Court justices refuse petulantly even to consider discoveries and constructive innovations emerging from the judicial systems of other countries?

Ernie Fazio said...

zJudicial Activism is inevitable. My vignette is personal. I went to law school in 1967, the height of the "liberal activism" of the Warren Court, but before Justice Blackmun (Roe v Wade) was appointed.

In Con Law Professor Jesse Choper, later Dean Choper, was intent on educating us on activism. He passed out a law review article to the class the content of which decried and excortiated the activism of Supreme Court. Its strong conclusions included the premiss that the Supreme Court should not be the last arbiter of constitutionality because it was too political, yada...yada..yada.

He asked the class our opinions of the article. We of course had concluded that the writer was: 1)writing during our era; and 2)was obviously a right-wing, conservative. He revealed in a flourish that the writer was a famous leftist legal scholar who was writing about the Stone Court that had preceded the Warren Court.

Activism is a relative phenomenon. Todays Federalist Society mainstreamers have responded to the Warren Court activists of almost 40 years ago. Tomorrow's liberal lions will be responding to the Renquist/Roberts Court activists of today.

"...we're captured on the carousel of time."

dreamingmonkey said...

Wonderful op-ed.

I agree with Fallon that his point does not lead to the conclusion that Roe should or should not be overturned. It only leads to the conclusion that Roe should not be overturned on the basis that it is activist. But would courts really overturn it on that basis anyway? That's not a legal argument.

dreamingmonkey said...

Don't forget that the founding fathers themselves were constantly warring over the political character of the courts, Adams with his Federalist "midnight judges" and then Jefferson impeaching Pickering(?) and Samuel Chase for their political sympathies....I'm not saying "judicial activism" is good, but it sure is old-fashioned.