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Judicial Activism

6 min read

Part of The Constitution and the courts.

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Every episode (4)

Who argued it

Clark Neily ×2 · David Kaplan · Damon Root

Supreme Court · Criminal Justice Reform · Constitutional Law · Individual Rights · Economic Liberty

Background

Defining the term

Damon Root describes judicial activism as a phrase typically used as an insult, applied to decisions the speaker dislikes or attributes to the other side. He notes that conservatives for the last 30 years have complained that liberals are the activists because they invented a right to privacy and rights to abortion not grounded in the Constitution, while liberals accuse conservatives of the same crime, arguing the Second Amendment protects a collective rather than an individual right and that Heller was conservative judicial activism. Root says the term is used loosely and not specifically, and that his book traces a century-and-a-half debate over the role of the courts, where the idea of judicial deference and restraint comes in Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).

Josh Blackman states flatly that judicial activism doesn’t really mean anything — it is an attack on a decision you don’t like. He says there are cases where courts should be active and cases where they shouldn’t, and the challenge is deciding which is which, with judicial philosophy the thing that matters: whether a judge looks to the original meaning of the Constitution or to an evolving standard of decency Eight-Dimensional Chess (2020).

Clark Neily draws the distinction he calls most important: judicial activity is not the same as judicial activism. When government violates rights — censorship, preventing worship, arbitrary travel bans — we want a judiciary that will actively enforce constitutional rights and push back against the other branches. Activism, properly defined, is when a judge substitutes his or her own personal policy preferences for clearly established law An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).

Restraint and its costs

Root presents Robert Bork and John Roberts as examples of the view that courts should be hands-off democratically enacted laws and not interfere with the elected branches. He recalls that in 2012 Roberts cast the deciding vote to uphold the healthcare law and called it an act of judicial restraint, saying it is not the court’s job to protect the people from the consequences of their political choices. Root argues Roberts takes judicial deference seriously enough to apply it where he may not like the outcome, while most conservatives and libertarians think he got it wrong Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).

Blackman describes Robert Bork, nominated to the Supreme Court but unable to get a seat, as perhaps the most eloquent modern advocate of judicial restraint, arguing that in wide fields of life the elected branch should be able to do whatever it wants. Blackman says the more modern approach is not reflexive deference but asking whether the government’s stated rationale is actually why it is acting, giving as an example a case in which the city of Philadelphia told a Catholic adoption agency it had to let gay parents adopt and the city said it was enforcing its non-discrimination policy Eight-Dimensional Chess (2020).

Activism and immunity doctrine

Neily calls qualified immunity one of the best and most glaring examples of judicial activism as he defines it. He says the judiciary took a statute, Section 1983, providing broad liability for government officials including police officers for the deprivation of any right, substituted its own judgment about ideal policy and a narrower scope of liability, and in effect rewrote the statute Congress had written An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).

Bob Zadek frames that as the Supreme Court putting a pen to a statute and adding two words the legislature that enacted it in 1871 did not intend, an unelected branch revising legislation without authority. He argues that if the concept makes sense at all, the legislature, answerable to the public, must write the legislation An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).

Neily extends the charge to absolute immunity, held by prosecutors and judges, which he says was invented out of whole cloth by the Supreme Court in a 1973 case, Imbler v. Pachtman, purporting to interpret Section 1983. He says the rationale for prosecutors is preposterously sophomoric and that the decision is nakedly policy-oriented, noting a dissent by Justice Stevens that he says destroys the majority’s historical argument Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).

Roe and the Warren Court

David Kaplan, whose politics he describes as decidedly left of center, says his book is heavily critical of Roe v. Wade: as a legislator he would support extremely liberal, unrestrictive abortion laws, but he does not think those rights ought to be declared by judges or that it is a constitutional matter, and the Court ought not be in the business of determining the — Demystifying the Supreme Court (2019).

Blackman attributes the Court’s increased importance to the Warren Court under Chief Justice Earl Warren, which he says had stood by idly for decades as segregation and Jim Crow spread before deciding enough was enough. He calls power an intoxicating drug and describes a short glide path from desegregating schools to prohibiting bans on abortion, saying that once you take yourself out of the mentality of deference, why shouldn’t the court substitute its wisdom for the other branches, and that once you accept that frame, all bets are off with five votes Eight-Dimensional Chess (2020).

Across episodes

The topic recurs from 2014 to 2022, and the treatment shifts: Root and Blackman treat the phrase as an empty or loosely wielded label, while Neily supplies a strict definition and applies it to judge-made immunity doctrine; Zadek’s framing of courts rewriting statutes in 2020 and 2022 is consistent across the two Neily episodes, and the episodes show no development beyond that.

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