Tuesday, May 12, 2009
The title of this post is the question posed by a new article in The Politico by Sidley Austin attorney and former Supreme Court clerk Keenan Kmiec. Shortly into the article, the author bemoans the way this term is used:
Without context or a clear definition, a charge of judicial activism is an empty epithet, the legal equivalent of calling someone a jerk. It hampers the exchange of ideas and lowers the level of public debate, wasting time (and pages) that could be devoted to serious discussion of the issues. With appropriate context and clarity, however, the term can be a valuable tool for a meaningful discussion about the judicial role.
From here, Kmiec attempts to define the term and provide examples. He first states, "As most commonly defined, judicial activism occurs when judges disregard the law in favor of their preferred outcomes." However, he suggests that even that definition is difficult as the definitions within the definition are so malleable. So, he provides more concrete suggestions: "Striking down arguably constitutional laws;" "Ignoring judicial precedent;" "Judicial “legislation;” and "Employing an illegitimate method of interpretation." However, Kmiec employs a nuanced approach even to each of these limits. For instance, he asserts that some terms ("e.g., "free speech") require some judicial legislation and that there are so many methods of interpretation it's difficult to consider any one invalid.
There are many reasons to read this article. First, by attempting to define the term, it reduces the incentive to use the term as a slur as is the current fashion in some circles. Second, the article is an insightful meditation on the issues at the core of constitutional law. When should a Court ignore precedent? What about the areas of law - such as fundamental rights and the dormant commerce clause - that are almost entirely judicial legislation at some level? Finally, the article is a nice segue into Kmiec's comment on the piece - published at 92 Cal. L. Rev. 1441 - which tackles the issue in much greater depth. The comment analyzes the history of the term and provides additional definitions of the term and more detailed analysis. As we head into this judicial appointment and confirmation season, both the Politico article and the comment merit close reading.