Views from the Bench
| Publication year | 2013 |
| Pages | 12 |
| Citation | Vol. 26 No. 6 Pg. 12 |
November, 2013
JUDICIAL ACTIVISM, RESTRAINT, & THE RULE OF LAW
Thomas R. Lee, Justice.
The public dialogue about the work of the judiciary is often salted with emotive terminology. When we want to denounce judges we often call them activist. To praise them we may call them restrained.
These are loaded terms. If you call someone a judicial activist you're not just disagreeing with them, you're hurling an insult. The converse is also true. When you characterize a decision as the product of judicial restraint, the intent is not just to express agreement but to praise a court for its humble statesmanship.
At this level of generality, we have near universal consensus on the meaning of these words. Restraint is good. Activism is bad. Restraint is an ovation. Activism is an epithet.
Unfortunately, the consensus ends there. Courts and their critics throw these loaded words around in ways that convey wildly different meanings. And too often the decision of which meaning to use is a matter of mere opportunism. A decision one strongly disagrees with is derided as activist, while a favorable decision with a similar effect is lauded as appropriate.
This is unacceptable. Our dialogue about the use and abuse of the judicial power is too important to be confounded by language that packs emotion but lacks substance. Unless we're going to banish these loaded terms from our legal lexicon (and I rather doubt our ability to do that), we should define them more carefully. Fighting words have no place in the judicial dialogue. We need a principled basis for differentiating laudable acts of judicial restraint from troubling forays into activism.
In the paragraphs below I will first demonstrate that our use of the terminology of "activism" and "restraint" is inconsistent and lacks a unifying theory. Second, I will attempt to offer a neutral ground for judging our judges (on the "activism" and "restraint" front). Specifically, I will suggest a way to conceptualize these terms in a manner building on a longstanding conception of the nature of the judicial power - a definition, in my view, that is aimed at ensuring governance by the rule of law and not the arbitrary will of a judge. Third, and finally, I will consider a recent Utah Supreme Court opinion under both the prevailing terminology and under the usage I propose, defending the opinion against a hypothetical charge of judicial activism.
Activism & Restraint: Empty "Fighting Words"
Our principal uses of the notion of judicial activism are rife with inconsistency and doublespeak. This "a" word is used in judicial opinions and public discourse in at least three different senses. None of them properly captures a principled ground for criticizing judicial decisionmaking. Before I explain the problems with the three main notions of activism in common usage, I will first describe them.
First, judges are sometimes criticized as "activist" when they hand down decisions that override instead of deferring to an act of another branch of government. Under this definition, the hallmark of activism is an assertion of power by the judicial branch at the expense of a coequal branch like the legislature or the executive. In 2012, President Obama made use of this notion of activism in public comments he made on the U.S. Supreme Court's consideration of the constitutionality of the health insurance mandate in the Affordable Care Act. In a preemptive challenge to a decision possibly striking down this legislation under the Commerce Clause, the President said this:
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint - that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize that and not take that step.[1]
This "example" of activism cited by President Obama focuses on the effect of the court's decision on the acts of the democratically elected branches of government. Because a "strong majority of [the] democratically elected Congress" came to terms on the Affordable Care Act, the President challenged the capacity of the "unelected group of people" on the court to overturn this "duly constituted and passed law."
This notion of activism is hardly unique to liberal critics of the court or to politicians on the left. When the Supreme Court handed down its recent opinions on the subject of same-sex marriage, conservatives were not exactly pleased. And some conservative critics of those decisions made an equal and opposite charge of activism in the form of overriding the will of the people. Consider this critique of the Proposition 8 decision by U.S. Senator Ted Cruz:
We saw a decision from the U.S. Supreme Court... [that] was an abject demonstration of judicial activism.... The citizens of California went to vote and they voted and said in the state of California we want marriage to be the traditional union of one man and one woman, and the U.S. Supreme Court, as a result of its decision said you have no right to define marriage in your state, we know better.[2]
Senator Cruz's invocation of the "a" word is much like President Obama's. Both charge "activism" when they mean to criticize a decision overriding the democratic will of the people. Cruz's main addition is in the adjective "abject." From what I can tell "abject activism" is even worse than regular activism.
A second notion of activism focuses on the effect of the court's decision not on other branches of...
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