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• Pt. 1

Part I

Introduction

In modern American legal discourse, the term judicial activist has become an epithet that sheds more heat than light, its definition varying greatly according to the rhetorical needs of the moment. Nonetheless, there is an important jurisprudential concept underlying judicial activism as Arthur Schlesinger first described it in 1947. It drives at the heart of the American judicial system, namely the proper role of the judiciary vis-à-vis the legislature and the written constitution. The problems touched upon by the question of judicial activism are particular to the American system, since they presume a common law model of developing case law via precedent, as well as the existence of a written constitution, which the judiciary may interpret as requiring the voiding of contrary legislation, per Marbury v. Madison. Yet judicial activism, coherently conceived, cannot refer to the mere fact of overturning legislation, but rather to the means and justification whereby a constitution or law is interpreted. This reference to judicial intent makes the accusation of activism (for those who believe it is a bad thing) difficult to prove in particular instances, but this does not render the concept useless. Quite the contrary, one’s attitude toward judicial activism likely reflects one’s fundamental approach toward interpreting law, so it makes an important difference how this subject is treated in law school and in the legal community.

Once we resolve the difficult question of exactly what judicial activism is, we may look back at the jurisprudential history of the U.S. Supreme Court to see how the balance of power among various schools of thought shifted over the centuries. We may see some of the benefits and defects of each perspective, leading to an examination of the circumstances when, if ever, judicial activism may be a meritorious position.

Most defenses of judicial activism have emphasized the supposed impracticability of an unambiguous objective construction of a written constitution or law, thereby justifying a judge’s use of subjective interpretation, based either on his private views or on his perception of the popular will. Critics of judicial activism have argued that this is a sort of despotism, undermining the sovereignty of the people as expressed through the legislature. Both sides usually assume that activism requires the imposition of a private political philosophy grounded in pure subjectivity. This is because the United States does not have a juridical tradition of natural law, as existed in continental Europe for many centuries. The concept of natural law entails that there are objective normative principles for humanity that transcend any determinate legislation crafted by man, or positive law. There is an echo of the notion of natural law in the Bill of Rights, which presents rights not as being granted by the government, but as pre-existing rights that are retained by the people. In practice, however, judges were long reluctant to articulate rights not explicitly enumerated in the Constitution, making it effectively the case that the only rights are those that the government grants. An expansion of rights beyond what is explicitly articulated in the Constitution may be justified by an appeal to natural law. However, in order for such a method not to be abused, it would be necessary to have developed a sound natural law tradition, something that has been generally neglected in U.S. jurisprudence.

1. History of Judicial Activism as a Rhetorical Concept

1.1 Judicial Legislation

In his study of the origins and uses of the term judicial activism, Keenan Kmiec finds that the concept was originally expressed as judicial legislation. [Keenan D. Kmiec, The Origin and Current Meanings of ‘Judicial Activism,’ California Law Review 92(5) (Oct. 2004): 1441-1477.] It is unclear, however, if this is really the same concept. After all, in common law jurisprudence, it is unquestionable that judges make law in some sense, as their rulings are not restricted to a particular case, but establish rules of interpretation for all future similar cases. Such rules effectively flesh out or define what the legislature left unclear, or apply the law to particular circumstances that the legislators never envisioned. In such activity, judges amplify the law and may be said to make law. Indeed, the study of law is considered woefully incomplete if it does not include a study of case law.

Even this relatively uncontroversial type of judicial legislation found its opponents, most notably Jeremy Bentham. Those who accepted common law jurisprudence and its rule of precedent admitted a certain reticence about exercising it too freely, and the early twentieth century controversies about judicial legislation should be understood as occupying this domain. This was not constructing law out of whole cloth, or disregarding the meaning or text of the law as written, but simply resolving ambiguities and difficult circumstances until such time as the legislature issued more specific directives.

1.2 Schlesinger’s Definition of Judicial Activism

In 1947, the journalist Arthur Schlesinger first introduced the term judicial activism to characterize New Deal judges. As we shall see, this did indeed reflect a marked shift in jurisprudential approach. He contrasted the Judicial Activists on the Court—Justices Black, Douglas, Murphy and Rutledege—with the Champions of Self Restraint, identified as Justices Frankfurter, Jackson, and Burton. (The other justices occupied a middle ground.)

This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system. [A.J. Schlesinger, Jr. The Supreme Court: 1947, Fortune, Jan. 1947, 202.]

In the Black-Douglas view, legal reasoning is malleable rather than scientific, as Kmiec says. That is to say that there is no way to determine the meaning of the law objectively, so you can just reason toward your preferred outcome. If this all too clever philosophical hermeneutic were really true, rule by written law would have little or no use. In the activist view, Schlesinger writes:

The resources of legal artifice, the ambiguity of precedents, the range of applicable doctrine, are all so extensive that in most cases in which there is a reasonable difference of opinion a judge can come out on either side without straining the fabric of legal logic.

Since objectively right answers are impossible to determine in most non-trivial cases, in fact everyone decides such cases by policy preferences, consciously or unconsciously. The activist concludes: A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye to social results. In Schlesinger’s definition, the judicial activist is quite self-aware and unapologetic. It is not a question of a judge inadvertently bringing his biases toward a preferred outcome. He consciously considers that objectivity is impossible, so he tilts his interpretation toward the preferred outcome.

Even this activism operates within some constraints. It would be impermissible to give an interpretation directly opposed to the written law. Rather, one fills in the ambiguities in a way that will give the best policy outcome. There is some measure of such activism in all jurisprudence, insofar as there are some genuinely ambiguous cases where there is no objective basis for determining the right interpretation. Then a judge may fall back on the assumption that the legislature would not want a bad outcome, and go by what he thinks is the better result. Yet the judge’s belief about what is better might not agree with the legislature’s, so when the latter is ill-defined, the judge might inadvertently advance his own policy preferences under the guise of interpreting legislative intent. The modern activist believes that all judges are effectively and unavoidably activist. Thus he is likely to disbelieve other jurists’ claims of objectivity, and will evaluate their jurisprudential intentions based on outcomes.

Most lay commentators today adopt this attitude. They assume that it is the role of judges to rule according to what they think is most right and just, not according to some objective heuristic. When a case has an outcome favorable to conservative policy preferences, it is assumed that the judge was advocating such preferences. He is therefore faulted for not favoring the (supposedly) morally superior liberal policy preferences. Few seem to grasp the possibility that a judge may often rule against his own personal policy preferences, feeling bound by objective rules of interpreting written law. Indeed, the judge who frequently rules against his own policy preferences may be safely said to be exercising conscious self-restraint.

The Champions of Self Restraint believe that laws have fixed meanings and that judicial interpretation may not depart from such meanings, regardless of which groups benefit. When applied in a principled manner, judicial self-restraint per se does not favor the right or the left, though it may favor one or the other incidentally insofar as the fixed meaning of the law favors one or the other.

Note that the definitions of activism and self-restraint have nothing to do with whether one upholds or overturns a precedent, nor whether one declares a statute constitutional or unconstitutional. The frequency of either activity tells us nothing about whether someone is activist or not. What matters is the reasoning, whether or not it is grounded in the assumption that a law has a fixed meaning that must be respected when making a decision one way or the other.

Schlesinger himself was an ardent New Dealer, who was pleased with the policy outcomes of activist jurisprudence, but had misgivings about the liceity of the means, which could just as easily be used for harm, and more gravely, undermine democracy. He advised that judicial activism ought to be limited to fundamental rights of political agitation, as only these could not be safely entrusted to majoritarian rule.

The proposed limitation of judicial activism to certain civil liberties cases agrees with some modern arguments that it is the duty of the Court to defend minority rights against majority rule. In such cases, we might expect the Court to strike down legislation more frequently, giving the legislature less benefit of the doubt. Yet self-restraint has nothing to do with giving the legislature a benefit of the doubt as to whether it has violated minority rights. Rather, we must agree to fixed meanings both for the law in question and the constitutional provision defining the rights at issue. When the meaning of a statute is clear, then the issue is whether we can define civil rights with fixed meanings.

Although Schlesinger’s definition of judicial activism is intelligible in the abstract, it is far from clear that he has correctly identified activist justices. In particular, Hugo Black was noted for his emphasis on strictly textualist constructions of law and his use of historical arguments. His interpretive principles were broadly similar to those of Frankfurter, though often resulting in contrary outcomes, usually aligned with liberal policy preferences. To make Black an activist, one would have to accuse him of duplicity, or else modify the definition of activist to include those who construct the law badly through unconscious bias, or else those who consistently rule in favor of liberal policy preferences, regardless of their reasoning. If activism can be unconscious, it is practically impossible to define in the external forum. Indeed, by that definition, all justices, even the Champions of Self Restraint, might be activists, insofar as all may allow their unconscious bias to sway them toward their preferred policy outcome, be it conservative or liberal. If activism merely means preferring liberal social policies, it is simply a political label, another term for liberal, not a useful legal distinction.

The misuse of judicial activist as a synonym for civil rights activist was followed by other early writers, usually in a complimentary fashion. A 1949 article noted by Kmiec characterized Brandeis as a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions. Although this positive use of the term judicial activist was short-lived, the pragmatic or prudential justification for departing from strict rules of construction would endure.

1.3 McWhinney’s Scholarly Treatment

The negative connotation to judicial activism prevailed by the mid-1950s, though it was unclear whether activism was conscious or unconscious. Even Schlesinger’s relatively clear definition left something to be desired, as it was expressed in colloquial, non-legal terms, for he was not a lawyer himself.

The legal scholar Edward McWhinney made notable contributions to the serious study of this concept as a potentially workable characterization of jurisprudence. While trying to define the concept, however, he conflated it with several other phenomena, a confusion that has persisted in modern discussions.

In a 1955 article, McWhinney drew upon Justice Oliver Wendell Holmes’ Lochner dissent to define judicial self-restraint as a presumption of constitutionality for a law, even if the judge does not like its policy. This is contrasted with another aspect of Holmes’s jurisprudence, the tradition of judicial activism, involving the notion that in certain areas of subject matter, notably the field of political and civil rights, the Court should look with a jealous eye on legislation cutting down or trenching on those rights. For legislation involving such rights, there should be a judicial presumption of invalidity (or unconstitutionality).

McWhinney makes some unwarranted inferences about Holmes’s views. To be sure, Holmes takes the position in Lochner that:

…my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract.
…
Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

There is nothing in his dissent about a presumption of constitutionality. His finding for constitutionality is based on enumerated precedents showing that states have been granted broad powers to restrict the right of contract. Espousal of a particular economic theory is no reason to ignore these precedents; indeed it should not be a factor in a judge’s decision at all.

Likewise, we find no evidence of a presumption of non-constitutionality in Schenck v. United States 249 US 47 (1919), cited by McWhinney as an example of activism. In fact, that decision mentions circumstances where the right to free speech can be abridged, including the famous example of falsely shouting fire in a theatre. The unanimous court upheld the convictions under the Espionage Act, finding that the circumstances of war justified the prohibition of certain types of speech that might be permissible in peacetime. Writing the opinion, Holmes articulated a clear and present danger test that could be applied equally in wartime as well as peacetime. Even when he later dissented in Abrams v. United States, 250 U.S. 616 (1919), Holmes upheld the constitutionality of the Espionage Act, but denied that the offenses in question met the clear and imminent danger standard.

McWhinney invented new definitions of judicial activism and self restraint, grounded neither in Schlesinger’s definitions nor in the thought of Justice Holmes. Instead of making the distinction based on whether a judge decides by objectively constructed meanings or by his own policy preferences, McWhinney introduces the notion of a presumption of constitutionality or non-constitutionality. The practicer of self-restraint presumes the constitutionality of laws he does not like, while the judicial activist presumes the non-constitutionality of laws that would restrict civil rights in a way he does not like. While McKinney’s definition shares with Schlesinger and Holmes a criterion of ignoring or following one’s own policy preferences, he confuses the issue with the needless introduction of a second criterion, the supposed presumption of the constitutionality or non-constitutionality of a statute.

In a second article three years later, McWhinney revisited the topic of judicial activism, this time holding a more subtle position. In place of a simple dichotomy between activism and restraint, we are invited to think of different points on a continuum. Moreover, a jurist can be an activist in some domains, and show restraint in others.

It is not even enough to speak of a ‘civil libertarian’ activist. A judicial attitude, such as Black’s favoring the restriction of state action interfering with speech-press liberties, may be activist qua speech but passivist qua the protections of states-rights and local self-determination in a federal system.

Again, McWhinney seems to have confused the issue. Ruling against state action restricting speech does not necessarily imply a peculiar activist philosophy with respect to free speech, especially if such state action is contrary to the plain meaning of the First Amendment or long-established precedents of its interpretation. It seems now that self-restraint or passivism means reluctance to take judicial action in favor of some principle, while activism means an inclination to take such action. At least we no longer have the notion that striking down a law is inherently activist, for in the above example the same judgment restricting state action is at once activist and passivist with respect to different principles or domains. Still, McWhinney’s revised definitions of activism and restraint seem to reflect a judge’s policy preferences, yet these cannot be safely inferred from a judge’s rulings, and do not really tell us anything about a judges’s judicial philosophy, i.e., how he arrives at a decision, except to suggest that he prefers certain outcomes in certain domains.

1.4 Judicial Use by Hutcheson

The first known judicial use of the term judicial activism is an incidental remark by Judge Joseph Hutcheson Jr. of the Fifth Circuit Court of Appeals in Theriot v. Mercer 262F.2d 754 (5th Cir. 1959). In this unanimous decision, the court agreed that the defendant in a hit-and-run civil case was wrongfully denied his motion for an instructed verdict (i.e., a directed verdict), and that many errors by the judge caused the case to go out of bounds, denying him a fair trial. In an unnecessary footnote, given that both parties in the case accepted the established functions of judge and jury, Judge Hutcheson disparages the dissenters of Galloway v. United States 319 U.S. 372 (1943):

In view of the approach to the law of the case taken by both parties as to the function of judge and jury in a jury tried case, it will not be necessary for us to enter here upon a philosophical discussion of the struggle, beginning with the dissent of the activists in the Galloway case, supra, to change the ancient landmarks so that a trial by jury in the federal court will no longer be a trial by judge and jury, with the judge responsible for the just outcome of the trial, but a trial by the jury alone with the judge as a spectator or, at best, a figurehead. We think, however, we should say that in the controversy thus launched and still continuing, we stand firm against the judicial activism back of the struggle and the results it seeks to achieve, and, regarding as we do the guaranties of the Seventh Amendment, as applicable to plaintiff and defendant alike, we cannot understand how protagonists for the change can look upon the amendment, as apparently they do, as intended for the benefit of plaintiffs alone and, so regarding it, as the dissenters in the Galloway case apparently did, advocate doing away with or limiting, beyond the ancient use, the control and guidance of the trial by an informed and experienced judge.

The activism imputed to the Galloway dissenters is disregard for precedents upholding established rules of common law (ancient landmarks) that permit federal courts to withdraw from a jury any cases that present insubstantial evidence. In Galloway, the petitioner contended he was eligible for benefits under the War Risk Insurance Act for total and permanent disability, by virtue of insanity that he claimed existed at least since May 31, 1919, the latest allowable onset date to claim benefits. The judge deemed the evidence of continuous disability from 1919 to be insubstantial, and refused to allow the jury to make a verdict. The contention on appeal was that the case against the defendant was substantial, so the court erred by not allowing the jury to make a verdict, effectively denying a right to trial by jury. A majority of the Supreme Court upheld the judgment of a directed verdict, on the grounds that the petitioner showed evidence only of insanity in specific episodes and expected the court to speculate that this insanity persisted continuously. Moreover, the court upheld earlier precedents showing that the Seventh Amendment did not guarantee a right to trial by jury in all civil cases, especially claims cases, and held that directed verdicts were permissible even in civil cases such as this where Congress prescribed a right to trial by jury.

A dissent written by Justice Hugo Black (joined by Justices William O. Douglas and Frank Murphy) complained that the Galloway decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment. Black’s contention is that the precedents were wrong and contrary to the Founders’ intentions regarding the Seventh Amendment, as expressed in the Federalist papers and contemporary documents. In particular, the device of a directed verdict appears to be an illegitimate successor of the demurrer to the evidence, whereby the defendant agrees to the plaintiff’s facts and asks the judge to rule on the law. The Supreme Court’s ruling in Parks v. Ross 52 U.S. 362 (1850), upholding directed verdicts, was contrary to the traditional rule in Greenleaf v. Birth, 34 U.S. 9 Pet. 292, 299 (1835) that judges may instruct the jury that there is no evidence to prove a particular fact, but they cannot legally give any instruction which shall take from the jury the right of weighing the evidence and determining what effect it shall have. Justice Black acknowledged that judges should exert other forms of control over trials to guarantee fairness, but facts in common law trials were to be examined by a jury. Further, Black noted that upholding the Seventh Amendment may be peculiarly difficult, for here it is our own power which we must restrain.

Regardless of whether Black or the majority got the law right in Galloway, it hardly seems just to accuse Black of activism in the sense of disregarding sound principles of legal interpretation for the purpose of obtaining a desired policy outcome. While it is true that his disregard for precedents implies a certain radicalism, it is motivated by an appeal to the plain text of the Seventh Amendment (which applies to all common law cases for disputes exceeding twenty dollars) and evidence on meaning derived from the Founders and early jurists, using arguments that today might be called originalist. Stare decisis is not an absolute rule, and precedent may be overturned in the face of clear evidence that the interpretation is gravely wrong and results in serious harm. Black believes the unjust erosion of the right to a trial by jury to the point that a judge can deny this right even when prescribed by Congress shows that these precedents have ceased to be a credible interpretive scheme for the Seventh Amendment.

Nor can Justice Black fairly be accused of being an activist in the sense of aggrandizing power to the courts in the guise of interpretation, for here the point in question requires the renunciation of power by judges, in deference to the text and early history of the Seventh Amendment.

Once more we find an early usage of judicial activism that is not especially helpful or apt in its application, though we may at least gather from Hutcheson’s apparent intentions a probable definition of activism. It would mean those who willfully disregard or prescind from the rule of precedent, and perhaps from other accepted rules of judicial interpretation.

Strikingly, it is applied to a matter of constitutional interpretation, and indeed subsequent charges of activism most frequently pertain to constitutional questions. This could be perhaps because many jurists have allowed that constitutional interpretation admits much broader principles than statutory interpretation, as it deals with the powers of government and the rights of citizens, both of which may need to evolve subtly with time, even without the difficult process of formal amendment. Moreover, the difficulty of amending the Constitution means we are bound to most of the original text, deliberately drafted in broad terms that admit various modes of interpretation.

Judge Hutcheson applied the term judicial activist to Judge John R. Brown for his dissent in Refinery Employees Union of Lake Charles Area v. Continental Oil Co. 268 F.2d 447 (1959). The majority ruled that judges have the authority to determine arbitrability and to limit the scope of the arbitrable issue under a collective bargaining agreement. (The dispute in question was minor, involving assignment of four hours overtime to an employee in the wrong job classification.) The union had argued in district court that the arbitrator had the right to interpret the contract as to whether he had the right to arbitrate the award and not just the occurrence of an error. Both the district court and circuit court of appeals affirmed that courts have the power to determine arbitrability of an issue, citing precedents, and further that this power includes the power to define and limit the arbitrable issue. When one of the parties disputes the scope of arbitration, it is inescapable for the court to decide what the parties did agree to arbitrate. The agreement must be enforced according to the intention of the parties and protected from an arbitrator’s abuse of authority.

Judge Brown, in his dissent, challenged the relevance of the cited precedents, and disputed the majority’s argument that the company had not agreed to allow an arbitrator to award damages, but could only identify breaches in the contract. The idea that the arbitrator’s decision may itself become a subject of controversy is repugnant to the scheme of an orderly disposition of disputes before they ripen into the seeds of industrial conflict. (This phrase is taken from the Taft-Hartley Act.) Further, this notion that an arbitrator could only have a power that was useless is similar to the circuit court’s opinion three years earlier in Lincoln Mills of Alabama v. Textile 5 Cir. 230 F.2d 81 (1956), where they found a district court had jurisdiction but could not provide relief. Brown’s dissenting view in that case was upheld on appeal by the Supreme Court.

Judge Hutcheson, in his concurrence with the majority in Refinery Employees Union, says of Judge Brown:

Since, however, apparently on the basis of the success in the Supreme Court of his dissenting opinion in the Lincoln Mills case, he has in this opinion set himself up as general critic and censor of the court in the field of arbitration, I feel it my right and duty, as one who was not in the Lincoln Mills case and whose withers are therefore unwrung by it, to speak up. Deprecating the ebullient enthusiasm of my younger brother as pioneer, teacher and guide in the role of judicial activist, which he seems to have assumed, I venture to suggest to him that before taking too seriously his role of leader in our court of an activist movement to deride and destroy the ancient landmarks of the law, he take a little time off to read and reflect upon these words from one of the great English legal historians:

‘Philosophical speculation about law and politics is an attractive pursuit. A small knowledge of the rules of law, a sympathy with hardships which have been observed and a little ingenuity, are sufficient to make a very pretty theory. It is a harder task to become a master of Anglo-American law by using the history of that law to discover the principles which underlie its rules, and to elucidate the manner in which these principles have been developed and adapted to meet the infinite complexities of life in different ages. Such students of our law will learn even though at second hand, something of the practical wisdom which comes from knowledge of affairs. They will for that reason be able to suggest solutions of present problems which will depend not merely on their own unaided genius, but on the accumulated wisdom of the past.’ Holdsworth, Some Lessons from Our Legal History, 105.

Again we find a reference to ancient landmarks of the law, and activism is associated with a disregard for such landmarks. The citation of Sir William Holdsworth gives a little more insight into Hutcheson’s intentions. The contrast is not between reasoned and unreasoned argument, but between those who trust their own abstract theoretical reasoning and those who trust the practical wisdom accumulated in the history of the law. In Holdsworth’s terms, it is a distinction between the rules of law and the principles which underlie its rules, the latter being gleaned from history. Hutcheson believes that Brown has simply made abstract, reasonable-sounding arguments, while ignoring or undervaluing the wisdom embodied in the historical practice of the courts. One may question whether this charge can be fairly applied to Judge Brown, but even if not, we at least have a clearer concept of what Judge Hutcheson intends by the term judicial activist. If someone is wrongly accused of an offense, it need not follow that the offense is poorly defined.

In Lincoln Mills, the Fifth Circuit Court (not then including Hutcheson) had agreed that the Labor Management Relations Act of 1947, commonly known as the Taft-Hartley Act, granted district courts jurisdiction over the case in question, but denied that they could authorize injunctive enforcement of the agreement to arbitrate, as no statute granted the district court this authority. The circuit court cited pre- and post-1947 case law to support its claim, In the absence of statute it is the general rule that executory contracts to submit disputes to arbitration will not be specifically enforced.

Judge Brown, in his dissent to Lincoln Mills, argued that the district could authorize injunctive enforcement even in the absence of a statute specifying this. He held that the court’s power is not limited to statutory power, for the court is a constitutional organ with the intrinsic capacity to grant traditional coercive relief as the cause over which it has jurisdiction may require. That is, given that Congress has granted district courts jurisdiction over violation of contracts between employers and labor organizations, it follows that they may grant injunctive relief in such cases. We note that Judge Brown’s argument, while reasonable in itself, is utterly contrary to what courts had held on similar, though not precisely identical, issues before and after 1947.

So it is at least reasonable for Judge Hutcheson to accuse Judge Brown of being a judicial activist in the sense of disregarding the general practice of the courts when forming judicial opinions. The term is more than a mere epithet, for it carries some significance about a judge’s method of interpretation. For Hutcheson, it seems, judicial activism is a serious failing or judicial malpractice, for it disregards an essential aspect of Anglo-American law by considering questions de novo without regard for the history of how courts have actually ruled and behaved. Activism is a sort of anti-traditionalism that threatens to discard centuries of accumulated wisdom and make the law uncertain and unstable.

If Hutcheson’s definition of judicial activism is disregard of precedent and common law tradition, we might identify judicial activists in terms of how frequently they propose to overturn a precedent. Even granting, under traditional principles of Anglo-American law, that there are occasions when overturning a precedent is justified, the rule of stare decisis requires that such reversals should be made sparingly. The rule is motivated by a desire for stability in the law, for the law is fairer if everyone knows in advance what it is). Still, this tentative definition of judicial activism is different from that first proposed by McWhinney, for it has nothing to do with whether one upholds a law or declares it unconstitutional. Following precedent need not involve any presumption of constitutionality for acts of Congress or state legislatures. If we are to propose a form of self-restraint in opposition to judicial activism, it would be to subject one’s own arguments to the limits defined by precedents, regardless of what one may think of these precedents in the abstract.

1.5 Later Judicial Use by Van Graafeiland

According to a search conducted by Kmiec (2004), there were just two federal cases mentioning judicial activism or judicial activist in the 1950s (discussed above), then four such cases in the 1960s, followed by 24 cases in the 1970s, 87 in the 1980s, 108 in the 1990s, and 39 cases in 2000-03. Of all these 264 cases, 227 used the term once, 29 used it twice, and 8 used it 3 or more times, suggesting that the vast majority of mentions were incidental, not in-depth discussions of the concept.

In at least one case, the accusation of judicial activism by a dissenter was especially pertinent to the central issue of the majority holding. In Turpin v. Mailet 579 F.2d 152 (1978) (Turpin I), the Second Circuit en banc majority held that cities could be liable for damages for Fourteenth Amendment violations. This was contrary to Monroe v. Pape 365 U.S. 167, 187-91 (1961), where the Supreme Court majority opinion, written by Justice Douglas, held that the legislative history of the Civil Rights Act of 1871 made it untenable that Congress intended for municipalities to be treated as persons that could be sued for damages. Yet a more recent Supreme Court ruling, Bivens v. Six Unknown Named Agents 404 U.S. 388 (1971), found that federal courts may award damages for violation of a constitutional right even in the absence of a statute. Thus Turpin could appeal directly to the Fourteenth Amendment to demand damages. In his dissent to Bivens, Chief Justice Burger had warned that this expansion of judicial power into the legislative sphere would greatly increase the docket; now Turpin v. Mailet (1978) would extend these suits for non-statutory damages even to municipalities.

In his dissent to Turpin I, Judge Ellsworth Van Graafeiland remarked that the 2nd circuit had just fifteen years earlier, in Fisher v. City of New York, 312 F.2d 890, 891 (1963), denied a claim for money damages appealing directly to the Fourteenth Amendment, as no relief could thereby be granted under Federal Rules of Civil Procedure.

Our Brothers in the majority have now arrived at a completely contrary holding. In doing so, they do not tell us whether Judges Medina, Waterman and Moore erred in deciding Fisher as they did or whether these able judges were simply interpreting a different Constitution from the modern Constitution which the majority herein purport to construe.

The majority justify their holding by stating that they are simply creating a [structure] for enforcement similar to those normally fashioned by legislatures. They say that they are [invigorating] the political process, that they are indulging in judicial rule-making which they liken to legislative activity, and that they are thus opening a dialogue with Congress. With all due respect for our Brothers’ good intentions, we do not believe that a decision of such incalculable impact as the one they now make can be justified as simply the opening of a dialogue with Congress or that it comports with this Court’s constitutional role in a democratic society.

Commentators who advocate the judicial adoption of a modern Constitution tend to look with disdain upon the intentions of those who labored so hard to frame the written document. That standards of interpretation should be based upon these intentions is labeled as a filiopietistic notion completely out of place in what these advocates are convinced is a more enlightened age. Judges are more circumspect. Rare indeed is the judge who will concede that his decision departs in the slightest from the meaning and intent of the carefully prepared text. The American public must be mercifully soothed into a belief that each judicial pronouncement, no matter how autocratic, is made in compliance with the people’s constitutional mandate.

While Judge Van Graafeiland does not impugn the intentions of his colleagues, he thinks they have made a serious error by venturing into something that, by their own admission, is akin to legislative activity. His contention that they have constructed a modern Constitution different from the original seems strange, given that the majority have used this expression only once:

Moreover, if we were to accept the City’s argument that, independent of legislative action, courts lack the power to compel compliance with constitutional provisions containing congressional enforcement clauses, we would be emasculating much of the modern Constitution. An express grant of power to the legislative branch is not peculiar to the fourteenth amendment. It is contained in the thirteenth, fifteenth, eighteenth, nineteenth, twenty-third, twenty-fourth, and twenty-sixth amendments as well.

Here modern Constitution seems to mean simply the Constitution with its modern amendments. The argument is: if the Court needed an act of Congress to enforce amendments that mention legislative grants, then most of the modern amendments would be emasculated, having no more force than what Congress chooses to give them.

Judge Van Graafeiland’s complaint of a modern Constitution is motivated by trends in legal scholarship, to which he thinks his colleagues have succumbed. In such views, the meaning or content of the Constitution may be re-interpreted over time to enable it to address new problems. Slavish adherence to the original meaning as if fixed for all time would entail an undemocratic subservience to our ancestors. Judge Van Graafeiland cites Arthur S. Miller and Ronald F. Howell (1960) as exemplifying this position. [A. Miller R. Howell, The Myth of Neutrality in Constitutional Adjudication, 27 U. Chi. L. Rev. 661, 683 (1960).] Later, we will review whether this is a fair characterization of their work. For now, it suffices to understand merely what, in Van Graafeiland’s mind, is the position he will characterize as activism.

Students of constitutional history are agreed that one of the primary factors which motivated the authors of our Constitution was the fear of unchecked power in the institutions which they created. It is clear, moreover, that this apprehension was not directed against the legislative branch alone. Unlimited judicial power was to be guarded against, and this meant, among other things, that the judiciary was to be precluded from participating in the legislative process. Judicis est jus dicere non dare was an established maxim of the English law which served as a guide and inspiration for the constitutional framers. Rufus King, one of the Constitutional delegates, stated that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.…

One need only skin through the all too numerous Supreme Court dissents to recognize that on occasion judicial activism has been checked with a very loose rein. Sometimes this has pleased the so-called conservatives; at other times it has gratified the so-called liberals. During the early decades of the twentieth century, those who are today’s staunchest supporters of judicial activism were the most vocal critics of the Supreme Court’s usurpation of congressional powers in striking down social and welfare legislation. When the focus of the judiciary swung from property rights to personal rights, a new and different set of critics came to the fore. The issue, as these critics see it, is not one of liberalism versus conservatism, but one of representative democratic government versus judicial autocracy.

Here the term judicial activism is tossed in as though the reader is expected to know what it means. From context, it seems that to Judge Van Graafeiland judicial activism means appropriating legislative functions. It does not matter whether such activism serves a liberal or conservative policy preference. What is relevant is that the Court appropriates to itself law-making power that belongs to the popularly elected Congress. Though sometimes this activism is effected by striking down legislation, this need not always be so, as in the present case the court is acting in the absence of a statutory mandate.

Yet, in the common law tradition, courts have always helped form the law in some sense. Judge Van Graafeiland recognizes that the majority tries to frame its activity in this context:

It is obvious that the majority herein, in an attempt to avoid the charge that their decision is undemocratic, have opted, lock, stock and barrel, for the concept of a constitutional common law espoused by Professor Monaghan. Professor Monaghan asserts that due process holdings may be either pure constitutional or quasi-constitutional in nature, or they may be broken down into pure and quasi-constitutional components. Pure constitutional holdings, he says, may be modified only by constitutional amendment. As to the quasi-constitutional holdings which he calls the common law of the Constitution, Congress is now to play the checks and balances role which the constitutional framers intended for the Supreme Court. As Professor Monaghan puts it, [W]here the Court’s rule is perceived to have gone too far, it can be rejected or modified by the political process without the necessity of a constitutional amendment.

The majority does indeed reference Monaghan (1974) when characterizing its non-statutory remedy as doing no more than fulfilling its traditional common law function and doing no more than creating structures for enforcement similar to those normally fashioned by legislatures. It is less clear that the majority adopts the rest of Monaghan’s theory as described above. The phrase doing no more than shows that the majority is claiming to act within the bounds of judicial authority, as defined by the common law tradition. Even Monaghan’s fuller opinion limits what the Court can do in the name of common law, as he excludes purely constitutional questions, and allows that any common law construction of quasi-constitutional questions can be overridden by Congress without constitutional amendment. [H. Monaghan, The Supreme Court, 1974 Term ‼ Foreword: Constitutional Common Law, 89 Harv.L. Rev. 1 (1974)]

Unfortunately, calling the end product constitutional common law does not change the nature of the process by which it is reached. That, purely and simply, is judicial legislation, defined euphemistically by the majority as opening a dialogue with Congress or invigorating the political process. Invigoration means that courts are to take the legislative initiative, with Congress following docilely behind, confronted after each judicial decision with the problem of deciding whether the court was legislating (constitutional common law) or judging (pure constitutional law). When the majority say that Congress is unlikely to negate its ruling in this case, they do more than hazard a conjecture. If the lay members of Congress can determine what part of the majority’s holding is pure constitutional law and what part is constitutional common law, they are more perceptive than the writer of this opinion.

Again, Judge Van Graafeiland imputes to the majority this distinction between pure constitutional and quasi-constitutional holdings. In fact, the majority only cites its traditional common law function, i.e., prescribing a remedy for a violated right in the absence of any statutory prescription. He accuses them of judicial legislation, and notes the practical problem that Congress would have to discern somehow when a Court ruling was merely common law and subject to be overturned by legislation.

In any event, the majority do not answer the charge of over-reaching by conceding that Congress may have the right to reverse its decision in whole or in part. The issue here is not whether any part of the majority’s holding can be discarded by Congress; it is whether the American people, speaking through their Congress and their written Constitution, have authorized this Court to permit an award of damages against municipalities directly under the Fourteenth Amendment. We are satisfied that anyone who reads the history of this Amendment and of 42 U.S.C. § 1983 without a preconceived determination to attain a particular constitutional goal will conclude that they have not.

The central issue of restraint versus activism is whether a Court is acting within its authority under the written Constitution and acts of Congress. We emphasize written, because, following Marbury v. Madison, a written constitution is to be constructed as one would any other written law, according to its text, and, in case of ambiguity, by appeal to its drafters’ intent as far as that can be gleaned from the history of its origin and the then-prevalent meanings of legal terms and phrases. Thus the dissent directs us to the text and history of the Fourteenth Amendment and the Civil Rights Act of 1871 (now 42 U.S.C. § 1983) as the only relevant sources of authority. The damning phrase preconceived determination to attain a particular constitutional goal implies that self-restraint requires more than mere lip service to text and history, but the application of interpretive principles independently of any desired constitutional outcome. Some legal scholars and philosophers may disparage or despair of the possibility of such neutrality, but this would be to say that self-restraint is meaningless and any attempt to limit judicial autocracy is doomed to failure. No champion of self-restraint can admit such a position, and even those accused of activism at least purport to arrive at their conclusions in part through objective principles.

The quoted phrase preconceived determination… comes from Justice John Marshall Harlan II’s dissent in Oregon v. Mitchell 400 U.S. 112 (1970). Here Justice Harlan, while admitting the Voting Rights Act Amendments of 1970 ought to be sustained under the Court’s decisions in Baker v. Carr (1962) and other suffrage cases, he found these rulings to be judicial constitutional revision. Oregon and its companion cases give us reason to pause before we allow those decisions to carry us to the point of sanctioning Congress’ decision to alter state-determined voter qualifications by simple legislation, and to consider whether sound doctrine does not in truth require us to hold that one or more of the changes which Congress has thus sought to make can be accomplished only by constitutional amendment. In short, Justice Harlan suggested that the strongly unconstitutional implications of recent revisionist precedents in the present cases should cause us to at least partly overturn these precedents and strike down some of this legislation. The basis for this finding is direct appeal to the history of the Fourteenth Amendment, which was never intended to authorize Congress to set voter qualifications. Justice Harlan’s protest that constitutional amendment may be needed in some cases was heeded at least with regard to lowering of voting age, for which the Twenty-Sixth Amendment was passed the next year.

The majority in Turpin I defended against the accusation of interpreting a different constitution by remarking that the Fisher decision occurred prior to the Supreme Court’s ruling in Bivens, which established that damage actions can be implied directly from the Constitution. The matter might have been left there, simply noting that interpretations of the Constitution by a circuit court must respect Supreme Court precedents. Instead, Chief Judge Kaufman feels the need to add:

My brother Van Graafeiland would obviously feel more at ease if the Constitution were of such specificity that it could remain unaffected by the passage of time. But the fact, as the dissenting opinion notes, that the Constitution was drawn with purposed vagueness so as to leave room for the unfolding future, Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 491, 59 S.Ct. 595, 604, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring), is, in our view, part of the fundamental structure of our democracy. That the developing interpretation of constitutional rights has reached the point where remedies are available for conduct which shocks the conscience or conflicts with traditional notions of fair play and substantial justice is hardly a cause for alarm or regret.

Frankfurter’s famous remark about purposed vagueness means that the Constitution was designed to be compatible with many different possible sets of legislation, judicial rulings,and executive administrations. Yet here Frankfurter was referring to the unavoidability of judicial exegesis. Judges must sometimes construct doctrines to resolve specific questions not clearly envisioned by the constitutional text. Nonetheless, Frankfurter immediately follows by saying, But the ultimate touchstone of constitutionality is the Constitution itself, and not what we have said about it. Here Frankfurter justifies setting aside much of tax immunity doctrine, for it was never properly grounded in the Constitution and its historic purposes, but an encrusting of unwarranted interpretations derived from an overly-absolute construal of some phrases in McCulloch v. Maryland.

In Kaufman’s take, the vagueness of the Constitution allows for there to be real change in its interpretation over time, as new issues arise. This is all that has occurred when the Supreme Court has recently recognized (in Bivens) that there should be remedies for violations of civil rights even in the absence of statute. Constitutional interpretation should not be condemned to stasis.

…the dissent emphasizes that [j]udges should consider the economic and social consequences of their decisions and should gauge the wisdom of their acts by the results which are likely to ensue. I agree wholeheartedly. Of course, by this the dissent admits that value judgments do ultimately, and especially in hard cases, play a role, even in constitutional adjudication. I wonder how that admission squares with the dissent’s purported eschewing of judicial activism, judicial legislation and judicial autocracy. In the end, it is the dissent’s value judgment based upon economic and social consequences including incalculable liability that prompts the dissent to decide as it does. Different value judgments motivate the majority to decide a different way. I believe the dissent is entitled to its judgment without pejoratives. I regret that the dissent does not play by the same rules.

This tu quoque argument has become a common rejoinder to accusations of judicial activism. Kaufman rightly calls out the inconsistency of Van Graafeiland’s appeal to economic and social consequences (citing Cardozo) at the end of his dissent. Somewhat less fairly, he accuses the dissent of being motivated primarily by such value judgment. In this way, he can place both opinions on the same plane of mere value judgments, one neither more nor less arbitrary than the other, and reduce the notions of judicial activism and the like to mere pejoratives. This ignores the fact that the main thrust of the dissent’s argument is that the Court has no authority from the text or history of the Fourteenth Amendment or an act of Congress to impose such damages to a municipality. Even the relevance of Bivens, which allowed damages in the absence of statue, is questionable, for here we do have legislative intent to allow damages against persons and to exclude municipalities from being treated as persons for this purpose. One may question these arguments, as with all arguments, and in that sense there is always a mere difference in judgment, undeserving of pejoratives. It misses the point, however, to deny that something qualitatively distinct is articulated when one points to questions of the limits of judicial authority as opposed to mere value judgments about policy outcomes.

Van Graafeiland’s use of the term judicial activism, directed against an opinion that explicitly authorized courts to engage in novel lawmaking-like activities, confounds two different phenomena. First, there is the expansion of judicial authority to include defining a body of law where none is defined by statute. Second, there is the illicit means by which one justifies this expansion of authority, namely a mode of interpretation that ignores or even contradicts the only legitimate sources of judicial authority, which are the Constitution and acts of Congress, construed according to their text and the original intent of their drafters, the representatives of the people. Both phenomena are held to be antithetical to the constitutionally defined limits of judicial authority.

In the course of making or defending against accusations of judicial activism, both the dissent and the majority opinion in Turpin I touch upon the question of whether and in what sense the Constitution is fixed or changeable in meaning. A related question is whether changes in constitutional interpretation may licitly appeal to desired outcomes, if not in particular cases or even specific economic or social policies, at least in terms of juridical principles or rights one sees as positive values worthy of enforcement. Another issue is the extent to which common law tradition makes judicial law-making not only licit but a duty.

In the Turpin I dispute about judicial activism, there was less emphasis on the mere fact of overturning precedent, and more on the method at arriving at this conclusion, and especially on the content of this conclusion, which would expand the power of the judiciary and practically obligate future rulings to develop a body of law. Van Graafeiland’s inconsistent lapse into socioeconomic consequentialism was likely motivated by a desire to dissuade the majority by practical considerations if abstract argument failed. Courts are ill-equipped to develop bodies of law case by case, as they have little positive control over what cases will come before them. This arrogation of legislative power may tempt courts to use cases to draw rules more general than necessary to decide the case.

Although there are many other judicial mentions of judicial activism, these early examples already encompass all of the major issues and possible defining characteristics of the concepts. Indeed, most other definitions of judicial activism are mere superpositions of the concepts discussed here. The frequency of judicial activism as a term increased sharply from the late 1970s until its peak in 1999 (according to Google Ngram). This popularity, unfortunately, has not been matched with clarity or consistency of usage. While it is tempting to dismiss the term as merely rhetorical or pejorative, its close connection with weighty questions of judicial philosophy leads us to believe that, cogently construed, it may shed more light than heat on central problems of Anglo-American jurisprudence.

2. Possible Definitions of Judicial Activism

Surveying the usage of the term judicial activism by modern jurists and legal academics, Kmiec (2004) identifies five ways in which the term has been defined:

1. Striking Down Arguably Constitutional Actions of Other Branches
2. Ignoring Precedent
3. Judicial Legislation
4. Departures from Accepted Interpretive Methodology
5. Result-Oriented Judging

Granting that one is free to define a term however one pleases, so long as it is coherent, we may, in the context of legal discussions, require that a term should moreover be useful in application to legal arguments. We shall briefly examine if any of these definitions of judicial activism have any prospect of usefulness, with the understanding that such prospect must ultimately be tested by application to actual cases.

As Kmiec observes, the frequency with which a court’s decisions invalidate actions by other branches of government does not by itself tell us anything about the propriety of those decisions. The increased or decreased frequency could be related to the frequency of illicit behavior by the other branches. If judicial activism should mean something more than judicial review, which is a proper function of courts, we must have some limiting qualification. Cass Sunstein proposed that only the invalidation of arguably constitutional statutes is a mark of activism. Such a definition of activism can hardly be a guide for evaluation of legal arguments. If we treat activism as something to be avoided, then the implication is that all arguably constitutional statutes and executive orders should be upheld. This would greatly limit the scope of judicial review, as practically all cases are arguable on both sides. Evidently Sunstein would have us give some benefit of the doubt to the constitutionality of legislation, and indeed some exponents of judicial restraint have articulated such principles in their decisions. Yet this reduces to a question of how the power of judicial review should be exercised, and the added notion of activism offers little practicable guidance on when one can and should invalidate acts of government.

Precedent may be considered in two senses, vertical and horizontal. It has been uncontroversial, even essential to the sound functioning of the courts, that vertical precedents be respected, i.e., that lower courts follow the precedents set by the higher. The Supreme Court unanimously agreed on this point in Rodriguez de Quijas v. Shearson/Am. Exp., Inc. 490 U.S. 477 (1989), though they were divided on the central ruling. Discussions of activism are more concerned with horizontal precedent, i.e., with a court disregarding or overturning its own precedents in earlier cases. As with invalidations, the frequency of overturning or disregarding horizontal precedent might be related simply to the merits of the cases, and not to any methodological failings on the part of judges. With precedent, however, we have the rule of stare decisis enjoining courts to favor respecting their own precedents. Thus we should expect the disregard or reversal of a precedent to occur infrequently, unless it is to reverse a series of egregiously bad decisions by a recent previous court.

The rule of stare decisis is not an inexorable command [Pearson v. Callahan, 555 U.S. 223, 233 (2009)], and it is sometimes not only licit, but the solemn duty of a court to overturn a precedent that was not only wrong in law, but resulted in widespread positive harm and proved to be unworkable as a principle for resolving cases impartially. If judicial activism is therefore limited to the overturning of precedents that do not meet such criteria, then the discussion of activism reduces to a discussion of the rule of stare decisis and the criteria for overturning precedent.

In the leaked first draft of Dobbs v. Jackson Women’s Health Organization (Feb. 10, 2022), Justice Alito articulates five factors to weigh when determining whether to overrule a precedent, though he does not indicate that these are the only five. They are: the nature of the precedent’s error, the quality of its reasoning, the workability of the rules imposed on the nation, their disruptive effect on other area of law, and the absence of concrete reliance.

First, the nature of the precedent’s error should be highly damaging in order for it to be overturned. An error in constitutional law is more justifiably overturned than an error in statutory law, not only because of the greater difficulty in remedy by constitutional amendment, but also because a constitutional error is likely to be more damaging. It might deny some basic right or legal principle or power of government, which can have sweepingly damaging consequences. It may seem that appeal to damaging consequences involves a policy judgment, but here the damage that needs to be assessed is whether a duly codified right or power has been denied or infringed, so this reduces to a properly legal judgment.

Second, the precedent in question must have been poorly reasoned, so that it was a bad construction of law on the merits of the case and evidence of the constitution or relevant statutes, their history and controlling precedents. Poor reasoning alone is not a basis for overturning, but one must also examine the other factors.

Third, an erroneous precedent might be upheld if it imposes workable legal rules to decide related cases. This is a practical judgment as to whether courts, legislators, and potential litigants are able to conduct business in the related area with clearly defined and settled law as guidelines for behavior. The Supreme Court has never defined workability comprehensively, but only on a case-by-case basis. Sometimes the test established by a precedent is seldom applied by courts in later cases, and this is taken as evidence of unworkability. More frequently, a precedent has a vague or ill-defined rule that creates confusion, so no one knows what is legal or illegal in that sphere. The remedy here could be legislation or an overturning or modification of the precedent.

Fourth, a bad precedent might be upheld if its error is confined to its own field of law, but if it has inadvertent effects on other areas of law, throwing those into confusion, then this is a factor weighing in favor of overturning it. After all, the purpose of stare decisis is so that the law may be settled, stable and known to all, even if it may not have been settled correctly in all rigor. If a wrong decision also causes instability in other areas of law, then stare decisis is a less compelling reason for upholding it.

Fifth, even a bad precedent may come, in the course of time, to establish legal rights and interests by various parties, so that overturning a settled precedent would affect the reliance interests of many people who have acted in a way that relies on the precedent, and would be brought to great harm (personally or financially) if the precedent’s guarantees were suddenly withdrawn. This factor seems to involve some policy judgment, insofar as we are weighing the harm caused by denial of reliance interests versus the good of correcting the law. To minimize the subjectivity of this assessment, the reliance interest must be concrete, not abstract or speculative, and substantial, not minor or trivial.

Alito’s list is not exhaustive. Another factor to be considered is whether factual changes have eroded the original precedent. This is relevant if the precedent relied on a contingent set of historical, social, or scientific facts, which are no longer true. Moreover, one may consider whether the precedent is settled, for a precedent that is not settled might be more readily overturned without disturbing the stability of law. Not settled means its foundation or reasoning was never reaffirmed in a subsequent case, even though its ruling may have been applied to a subsequent case. Not all of these factors are involved in every case overturning precedent, though Janus v. AFSCME 16-1466, 585 U.S. ___ (2018) mentions five of them.

Activism may be indicated, if not by overturning precedent by appeal to these factors, but by applying the factors wrongly, though this reduces to other questions of jurisprudence. More pertinently, an activist may merely disregard precedent without any mention of any of the factors that may cause a departure from the rule of stare decisis. This seems to be the sort of activism that concerned Hutcheson. Any judge who thinks he can ignore precedent in the determination of his ruling is falling radically outside the common law tradition, and redefining the nature of what it is to be a judge. Sometimes ignoring precedent may be inadvertent, though that is rarely an excuse today with teams of talented law clerks, not to mention the litigating attorneys and amici who are savvy enough to direct the Court to all relevant legal and historical literature. It may be questioned whether this precedent-disregarding creature really exists among jurists, or whether they merely apply the factors for setting aside precedent differently. In any case, the overturning or disregarding of precedent in itself is no proof of jurisprudential malfeasance, though it may be suspected as a symptom of such, given that Anglo-American law favors upholding precedent when feasible.

One of the more common characterizations of judicial activism is that it involves legislating from the bench. This accusation, if it could be well-defined, would indeed constitute a substantial type of judicial malfeasance, which transgresses the constitutionally defined separation of powers. Judicial legislation would not be reducible to the mere fact of invalidating other government acts or the method of applying or disregarding precedent, but would involve something distinct, namely proposing definite rules or policies without any grounding in the laws passed by legislatures. Yet we have noted that, in common law jurisprudence, it is sometimes unavoidable and even proper for the courts to define specifics of what was left unsaid by the legislature. If judicial legislation is to form a criterion of illicit activism, the scope of the positive law-making ability of courts would need to be defined. The general sense is that judicial legislation in an activist sense would be to add something to the law beyond what was written and beyond what the legislatures may have explicitly or implicitly left to the courts.

The notion of judicial activism as judicial legislation has the merit of being grounded in improper exercise of judicial function, and it does not require us to make assessments of a judge’s intentions or policy preferences, or whether the decision has good or harmful consequences. It reduces activism to a separation of powers issue, which indeed seems to be the general thrust of most arguments against it, as the role of the popularly elected legislature is usurped by unelected judges.

A fourth definition of judicial activism would encompass any departure from accepted interpretive methodology. There is dispute, however, about which methods are accepted. We will attempt a historical survey of accepted methods by the Supreme Court in applying judicial review. While it has been generally accepted throughout history that statutes should be interpreted primarily according to the literal meaning of the text, the validity of considering legislative intent as expressed in legislative debate or history has been disputed. There seems to be more inclination to have regard for such evidence of intent when interpreting the Constitution (by appeal to the Federalist papers and other contemporary documents), perhaps due to the greater importance and difficulty of interpreting that document. On the other hand, there has been a long tradition of allowing greater breadth of interpretation of the Constitution, due to its distinct character as a broad framework of government to be applied in diverse historical circumstances, and to be amended only with great difficulty. The question of activism becomes a question of the liceity of certain methods of interpretation. Activists, by departing from established norms, make their own subjective judgments binding. This again may be construed as a separation of powers issue, as the powers of the courts are expected to be restrained by methodological criteria, which make a judge’s actions on the law interpretive rather than creative. In its more serious form, activism would make the meaning of the laws or the Constitution utterly malleable in the hands of a judge, to the point that we are not governed by written law but by the arbitrary judgments of men.

Result-oriented judging is the commonly imputed motive of activism, which drives the methodological aberrations described. One may wrongfully invalidate acts of government, ignore precedents, create legislation, or disregard established norms of statutory or constitutional interpretation, all for the sake of promoting some desired policy outcome. While result-oriented judging may be a correct explanation of many instances of judicial activism, it is hardly a useful criterion insofar as it requires unprovable accusations regarding judicial intent. It should suffice to identify one of the aforementioned forms of judicial malpractice without also proving bad faith. On the other hand, without a policy-driven motive of some sort, so-called activism is indistinguishable from incompetence. Even members of the same judicial ideology have accused each other of activism, as they cannot always agree on what is the correct methodology to apply in a case, or how to apply said methodology. Although result-oriented judging is unprovable, it may be a useful criterion for judges to apply internally, if it is generally accepted that one should interpret the law without partiality for one party to prevail. There are circumstances in which a judge may consider whether a particular interpretation would be more likely to cause harm, yet even here he is guided by the presumption that the legislature would not intend that harm.

If result-oriented judging is the underlying motivation of judicial activism, judicial legislation and disregard for all (not merely some) norms of interpretation may be taken as evidence of this motivation. If one prescribes policies or rules beyond any legislative grant to the courts, one surely has no guiding light beyond one’s own policy preferences. We can say such a ruling is result-oriented because the judge’s own arbitrary discretion decides the result. Likewise, if the interpretation of law prescinds from all objective norms of jurisprudence, one is left only with one’s own discretion as the sole criterion for deciding the result. Wrongful invalidation or ignoring precedent are only equivocal signs of result-oriented judging, for they could have other causes, some righteous, others negligent.

Some jurists may openly espouse result-oriented judging as a positive thing, securing new rights for groups that might otherwise have no security in a majoritarian democracy. Such judges are certainly judicial activists, and some may even embrace the label. Others may justify result-oriented judging on the ground that everybody does it, consciously or unconsciously, as an inevitable consequence of the difficulties and ambiguities of legal interpretation, and even of the standard norms or methods of interpretation. While it is practically certain that some discretion or subjective judgment is involved in all but the clearest cases, we have taken care to emphasize that activism must be conscious, and that discretion is the sole determinant of the result. Thus judicial activism proper, as we are defining it, is a form of result-oriented judging that exhibits total disregard for norms of interpretation, i.e., appeals to text, legislative intent, legislative history, controlling precedents, or may even prescind from any attempt at interpretation, defining new law out of whole cloth without any clear legislative mandate to do so.

The presence or absence of judicial activism can be evaluated on a case-by-case basis. We examine the objective content, i.e., the evidence and arguments of each ruling, rather than attempt to plumb the depths of each judge’s secret motivations. If a ruling prescinds from all norms of interpretation or even from any attempt at interpretation, that ruling may be fairly characterized as activist. This restrictive definition of judicial activism allows there to be many other decisions that are bad, inept, even result-oriented, but not activist, for they at least make some attempt to apply standard norms of interpretation. If one finds some of these attempts feeble or disingenuous, one may suspect, but not prove, a disposition to judicial activism.

Since judicial activism is something to be evaluated in each case, we can only say that the writer of the opinion in question (and those who concur without qualification) has acted as a judicial activist in that particular case. Blanket characterizations of judges as judicial activists may be more difficult to justify, as one may write activist opinions only occasionally or only on certain topics, and otherwise conform to conventional norms of interpretation. It might be thought that we have made the definition too restrictive, for surely every judge makes at least some attempt, however feeble, to rationalize his opinion in terms of conventional norms of interpretation. We will see, however, that there is a substantial body of activist rulings with no semblance of valid legal argument, including some celebrated cases.

Judicial activism bears only indirectly on the issues of invalidating legislation and overturning or disregarding precedent. The invalidation of legislation as such is not a sign of judicial activism, though it may be a consequence of prescinding from all norms of interpretation. We cannot prove activism from the frequency of invalidating legislation, since that could well be consequent to the merits of the cases. We may suspect activism when the legislation in question has been upheld on multiple past occasions and only lately is being overturned on some constitutional provision that no one previously thought to prohibit such legislation. Even here, the fault is disregard for established norms and controlling precedents, not invalidation as such. Disregard for horizontal precedent may be justified in certain circumstances, especially on weighty constitutional matters, as discussed above. One may wrongly apply the factors for departing from stare decisis without being guilty of activism in the narrow sense of our definition. It is only when such an overturning of precedent prescinds from standard norms of statutory and constitutional interpretation that activism is at play. Given that stare decisis is to be set aside only sparingly, we might predict that judicial activists will overturn precedents more frequently than their contemporaries. Even if this expectation proves true, we cannot use the mere fact of overturning precedent in a particular case as evidence of judicial activism.

Judicial activism as we have defined it is a negative quality insofar as it transgresses the constitutionally defined separation of powers. When judges are bound neither by statutory language nor by objective norms of interpretation, their arbitrary judgment replaces the rule of written law. A principal purpose of our constitutional republic was to abolish such arbitrary rule. Yet common law jurisprudence antedates the republic, and retains some feudal qualities, granting considerable discretion to judges and some role in law-making. Some jurists may consider activism, even as we have defined it, defensible and praiseworthy. They might argue that justice for all requires the courts to depart from established norms, at least occasionally, for the greater good of securing the rights of minorities in an otherwise majoritarian republic. Unfortunately, the justifications for such departures have been haphazard to date, depending on each judge’s personal sense of right and wrong. We will later examine whether the revival of some form of natural law jurisprudence might help justify such activism on a more rational, less arbitrary basis.

Continue to Part II

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