Craig Green, an Intellectual History of Judicial Activism

• Publication year: 2009

AN INTELLECTUAL HISTORY OF JUDICIAL ACTIVISM

Craig Green^*

ABSTRACT

Over the past six decades, the term "judicial activism" has become an immensely popular tool for criticizing judges' behavior. Despite the term's prominence, however, its meaning is obscure, and its origins have been forgotten. This Article seeks to correct such deficiencies through a detailed conceptual and historical analysis of judicial activism.

First, the Article analyzes legal rhetoric, describing the post-war origins of the phrase "judicial activism," its eighteenth- and nineteenth-century prehistory, and its rise to prominence in the late twentieth-century. Second, the Article rejects as incoherent modern definitions of judicial activism, and instead describes a functional "concept" of activism based on unenforced norms of judicial propriety. Because judges make many decisions without supervision by other public officials, debates over judicial role are crucial to our legal system's operation. These debates-regardless of whether they use the word "activism"-illustrate why the concept of judicial activism remains inescapably important. Third, the Article offers a two-part, common-law method of determining whether particular decisions or judges are activist. This method contrasts with other ways of evaluating activism such as textualism, originalism, and jurisprudential theory. If widely adopted, the proposed approach to judicial activism might yield clearer perceptions of judicial behavior and might reduce destructive schisms between expert and non-expert discussions of judicial role.

INTRODUCTION ............................................................................................ 1197

I. A HISTORY OF JUDICIAL ACTIVISM .................................................. 1200

A. Schlesinger's Windfall .............................................................. 1201

B. Activism Before Schlesinger ..................................................... 1209

C. Modern Interpretations ............................................................ 1217

II. RECONCEIVING ACTIVISM ................................................................ 1220

A. Judicial Activism, Judicial Role ................................................ 1222

1. Judging Without a Leash ................................................... 1222

2. The Need for Judicial Activism Debates ............................ 1225

B. Self-Confessed Heterodoxy ....................................................... 1226

III. STANDARDS OF JUDGING .................................................................. 1230

A. Shortfalls of Text and History .................................................. 1231

1. Textual Vagueness .............................................................. 1231

2. Original Indeterminacy ...................................................... 1233 a. Framing-Era History ................................................... 1234 b. The First Judiciary Act ................................................ 1238

B. Theoretical Abstractions .......................................................... 1241

C. Scalian Limits ........................................................................... 1249

D. A Balanced Approach ............................................................... 1254

CONCLUSION ................................................................................................ 1260

INTRODUCTION

The term "judicial activism," despite its wild popularity, is poorly understood.¹For pundits, politicians, judges, and the public, activism-talk is so common that it masquerades as something natural and timeless.²Even among legal experts, few know whence the term came or why it has become mainstream, and despite frequent objections to its overuse, no scholar has adequately explained what (if anything) the term ought to mean.³This Article explores these issues in detail.

Today is an especially apt time to revisit judicial activism, as the Obama Administration will produce transformative judicial appointments during the next few years, thus shifting judicial activism debates to the fore.⁴This Article hopes also to address a persistent schism in modern discourse. On one hand, the public sees judicial activism as a key framework for criticizing judges' conduct, yet most legal academics dismiss activism as an irretrievably vague "myth" or "cliché."⁵That disconnection is counterproductive. When understood properly, debates over judicial activism are a vital part of public life, and they also represent the legal academy's highest calling.

Confusion and disdain over the term "judicial activism" have obscured a deeper concept of judicial activism that is a pillar of our legal system. By analyzing both the rhetoric and the idea of judicial activism, this Article rejects the term's scattershot applications and seeks to uncover cultural issues that have sustained the concept's longstanding relevance.

This Article has three parts. Part I offers a history of "judicial activism" to explain whence the term originated and why it spread. Some of this history is particular to a 1947 Fortune magazine article by Arthur Schlesinger.⁶But to explain why "judicial activism" caught Schlesinger's ear and the public's imagination requires a broader view of American judging. After surveying such judicial history, I criticize several modern uses of the term "judicial activism." Despite their current popularity, none of these rests on a stable conception of activism. Indeed, if such definitions were the only possible interpretations of "judicial activism," scholarly critics would be right that the term should be exiled from educated discourse.

Part II attempts a different approach. Contrary to conventional wisdom, I propose that judicial activism has no inherent link to boosting individual liberty or curbing governmental power. Instead, the "activist" label is useful only where a judge has violated cultural standards of judicial role. Such standards are not formally enforced and are only partly explicit. Yet they are vital to any legal system that (like ours) contains broad judicial discretion. Many applications of judicial power are nearly impossible to supervise, including most Supreme Court decisions, certain judgments of acquittal, and many civil settlements. I propose that "activism" is an appropriate, albeit limited, term of condemnation when such unreviewable authority is abused.

Part III considers practical problems in defining and debating standards of judicial activism. My goal is not to sketch a specific list of do's and don'ts, but rather to chart methods of constructing norms of judicial conduct. This is harder than it seems. As I will show, neither our most orthodox legal authorities-text and original history-nor our most scholastic discussion of judging-jurisprudential theory-meets the task. The scholarship of Justice Antonin Scalia also has failed to produce an authoritative answer, despite his privileged perspective on such issues.

Standards of judicial activism cannot be deduced from a simple page of text, history, or abstract reasoning. On the contrary, imperfections in applying orthodox sources to activism debates clarify the need for a more nuanced approach. I argue that our legal culture currently uses a two-strand approach in constructing judicial role-applying interlocked techniques of narrative and prescription like cords in a rope. Normative generalizations about judging require illustrative stories, and precedential examples need justificatory principles.

At bottom, this Article suggests that debates over judicial activism represent efforts to build what G. Edward White called "The American Judicial Tradition,"⁷or perhaps more accurately "The American Judicial Traditions." Although cultural norms of judicial conduct are forever contestable, that cannot counsel despair. Even as American political life has wrestled with protean words like "the People" and "Government," each set of American lawyers, scholars, and students must confront for themselves questions about judicial power and limits.⁸The term "judicial activism," properly understood, is as good a home for such debates as any.

I. A HISTORY OF JUDICIAL ACTIVISM

This study's first step is to distinguish the term "judicial activism," which was coined by Arthur Schlesinger in 1947, from the concept of judicial activism, which has older foundations. Section A starts with Schlesinger. Although some commentary implies that judicial activism's meaning was once clear and is only now clouded,⁹the opposite is nearer the truth. Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad. Flaws in Schlesinger's account, however, did not stop the term from rising to power, largely through unanticipated events like school desegregation and the birth of federal courts scholarship. Such eclectic beginnings explain why "judicial activism" is hard to define, but they do not explain why the term holds continued attention.

Section B offers a prehistory of "judicial activism" that links Schlesinger's terminology with deeper concepts of proper judging. Schlesinger was partly conscious of such connections; one reason he cut explanatory corners was his belief that the term incorporated traditions traceable to the eighteenth century. These Founding-era references mark a perceived continuity between Schlesinger's "activism" and anxieties about judging throughout history. Although Part III analyzes certain details more closely, even a brief introduction shows that "judicial activism" was more than a catchy phrase. The term evoked hallowed judicial traditions as baselines, even though Schlesinger did not himself examine such traditions' content.

Section C shifts to the present, identifying four uses of "judicial activism" that are popular today. For modern scholars who define and analyze...