Op Ed piece, Litchfield County Times, July 12, 2009

On the Trail of the Judicial Activist

David Begelman

A good deal of public commentary about the Supreme Court deplores something called “judicial activism.” Its practitioners are often called “loose constructionists,” or jurists who strive to promote a “living Constitution,” or to “make law” rather than “interpret it.” They are seen as too “liberal,” too far to the left. As Chief Justice John Roberts famously observed, the conservative counterpart of the judicial activist, the strict constructionist, is akin to an umpire who decides whether pitchers throw balls or strikes, not an official who changes the rules of baseball as he goes along. Yet Justice Roberts is uninformative about how one is supposed to tell the difference between calling balls and strikes and changing the rules of the game when it comes to legal decision-making.  

Currently, Judge Sonia Sotomayor, President Obama’s designee for the Supreme Court position that will be vacated by Judge David Souter, is under fire because of what some perceive to be her “activist” leanings. She will probably receive Congressional approval despite this, although sustaining a case for her “activism” may involve some cherry-picking on the other side. While conservatives have considered some of her decisions tinged with “activism,” she has also remarked that judicial responsibility is to “follow the law…not to question its plain terms.”  How then does one classify an appointee as “activist” or “non-activist” when his or her remarks or decisions seem to smack of admixtures of both?

It is high time debaters who wrangle over judicial activism come to terms with a reality they all but ignore. Whatever it is, judicial activism is not detected the way you discover umbrellas in the mudroom, see ketchup in the cupboard, or find beer bottles in the basement. It’s not uncovered in a flatfooted way, although talking heads around the nation would have you believe otherwise. They are sure that “judicial activism” is something obvious to any adult with an adequate set of observational skills who is familiar with the U. S. Constitution. I got news for them.

Charles Savage of The New York Times points out that it is far from certain that Judge Sotomayor’s judicial record is “activist.” He cites “several empirical studies that she is not particularly prone to overriding policy decisions by elected branches.”  His implication is that judicial activism can be measured by the tendency to strike down executive or legislative acts. Just one wild stab at fleshing out what the term is supposed to mean.

 On Mr. Savage’s criterion of judicial activism—perhaps only one among many insinuated in hopes of bringing an elusive concept down to earth—we’re in for some surprises. If the tendency for a judiciary to strike down laws by another branch of government can be construed as “activism,” this yardstick is quantifiable. It contrasts with concepts like “making law” or “interpreting law,” that are highly abstract, hence hard to nail down. Relying on this standard, a 2005 Yale University study found that the most “activist” judge on the court is the one least likely to be characterized as such in public discourse: Justice Clarence Thomas. At the time of the study, he struck down 65.63% of laws reviewed (followed by Kennedy with 64.06%, Scalia 56%, Rehnquist 46.88%, O’Connor 46.77%.) “Liberals” were the least “activist” according to this measure: Souter 42.19%, Stevens 39.34%, Ginsburg 39.06%, and Breyer 28.13%.

Of course, Mr. Savage’s measure of “activism” is troubling. It is the responsibility of all justices to strike down laws they feel are unconstitutional; so this standard may not comport comfortably with conservative ideology when the discharge of constitutional responsibility involves an “activist” tendency so defined. No matter. We all know (or fancy we know) Justice Thomas is anything but a “judicial activist.” So applying said measure results in mischaracterizing his true legal philosophy. Want to try a more workable definition on for size? Don’t bother. There is no measurable yardstick of “activism” that can cast Supreme Court justices or their decisions in expectable niches.

If “judicial activism” at bottom amounts to no more than a decision from the bench we happen to disagree with on social, ethnic, or religious grounds, we should acknowledge this, and cease resorting to highfalutin terminology like “making law” or “loose constructionism” to do our constitutional dirty work. Reading “activism” into court decisions may turn out to be the rhetoric of those who have undercover social agendas on such matters as abortion, assisted suicide, gun control, gay marriage, affirmative action, women’s rights, campaign finance reform, hate crimes, church-state separation, and any number of other contemporary issues nettling them.

We can toss around terms like “judicial activism,” expressions that have never been given a precise, empirically grounded definition, as a game of political rhetoric. Or we can redefine them less ambiguously, but at a certain cost. This is the one incurred when precision results in a crap shoot about who is who on the bench.

 

Dr. Begelman is a clinical psychologist. He resides in New Milford and is the drama and film critic of The Citizen News of New Fairfield.