Wednesday, October 21, 2009
Eric Segall (Georgia State) has posted "Reconceptualizing the Judicial Activism Debate as Judicial Responsibility: A Tale of Two Justice Kennedys," which will be published in the Arizona State Law Journal.
The academic and political debate over judicial activism has been based on the overriding but patently false assumption that the Supreme Court’s performance can be measured by examining the results that it reaches in constitutional cases. When scholars and politicians equate judicial activism with judicial invalidation of the works of the political branches or the reversal of precedent, however, these commentators don’t reveal anything different than would a pure descriptive account of the Court’s decision and rationale. Moreover, the judicial activism debate is unhelpful because the ambiguous sources of constitutional interpretation cannot privilege fundamental baselines or generate consensus over correct or incorrect outcomes. Instead of arguing over how “activist” the Court acts, I suggest that we should instead focus on how transparently the Court writes its opinions and how honestly it deals with other positive law materials. To demonstrate that point, the article discusses a number of decisions where the Court’s opinions threatened rule of law principles and violated minimum standards of judicial responsibility. I also use the jurisprudence of Justice Kennedy to distinguish between proper and improper Supreme Court opinions, and argue that focusing on how well the Court treats the past and the record in the case before it is more valuable in evaluating the Court than the endless back and forth of the judicial activism debate.