Judicial Activism and Judicial Restraint (Update)

Author:Louis Michael Seidman

Page 1449

In contemporary constitutional rhetoric, "judicial activism" is almost always a term of opprobrium. Prospective Supreme Court nominees regularly disclaim activist inclinations, and political and academic critics of the Court regularly decry activist overreaching. Yet despite the term's salience, there is considerable confusion as to its precise meaning.

In a loose sense, the attack on judicial activism, and the defense of its cognate virtue, judicial restraint, rest on a distrust of judicial discretion and an insistence on RULE OF LAW values. On this view, judicial decisions are entitled to respect because they are legal, objective, impersonal, and apolitical. An "activist" judge risks bringing constitutional law into disrepute by using it as an excuse to implement merely personal or political values.

To be sure, most sophisticated contemporary students of constitutional law reject this dichotomy between the "personal" and "objective," at least in its simplest form. Although Justice OWEN J. ROBERTS once insisted that the task of Supreme Court Justices was simply to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former," there are few modern adherents to mechanical jurisprudence among observers of constitutional law. Yet, despite persistent and trenchant efforts to discredit the mechanical view, it retains a powerful hold on popular perceptions of the appropriate judicial function and, at least in diluted form, plays some role in most standard justifications for JUDICIAL REVIEW.

Moreover, perhaps paradoxically, the modern attack on the mechanical theory, as well as the theory itself, tends to buttress arguments for judicial restraint. For if it is indeed true that judges must inevitably insert their personal values into the task of constitutional review, as critics of the mechanical theory insist, then there is all the more reason to constrict sharply the occasions for this review. Restraint is especially important, these critics maintain, because policy decisions by judges, implemented under the guise of constitutional review, often have unintended and unfortunate consequences. It is claimed, for example, that the Court's invalidation of ABORTION laws in ROE V. WADE (1973) served only to obstruct an emerging, sensible compromise to the abortion dispute, and that the Court's condemnation of school SEGREGATION in BROWN...

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