Clint Bolick of the Goldwater Institute has this op-ed in the Wall Street Journal (subscription). Clint is a highly regarded guy in conservative legal circles, but, regrettably, this article may serve to muddy the waters of the debate over the proper role of the judiciary in American government through an extremely ill-advised misuse of the term "judicial activism."
Clint's main thesis is that judicial review is proper and necessary. "[C]ourts holding the president, Congress, and state and local governments to their constitutional boundaries ... is essential to protecting individual liberty and the rule of law." No argument there. The problem is that Clint refers to the function just quoted as judicial activism. Wrong, wrong, wrong, very wrong.
The Seventh Edition of Black's Law Dictionary, edited by Bryan Garner, defines judicial activism:
A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among others factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.
That is what the term has meant in legal and political discourse. Justices Brennan and Marshall, for example, were the quintessential activists, proclaiming to the end of their tenures that the death penalty was cruel and unusual within the meaning of the Eighth Amendment despite its restoration by Congress and three-fourths of the States. Whatever arguments might be made about "cruel," the claim that a punishment with such overwhelming national endorsement was "unusual" within the real meaning the Eighth Amendment was completely unsupportable. They were just adamantly against it and thought they could use their position to impose that view on the country. Nor has judicial activism been historically limited to the left side of the aisle. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918).
It is true, of course, that some people blast as "activist" any decision that reaches a policy result they disagree with, even if the decision is well-grounded in the original understanding of the Constitution. That, however, is a false accusation rather than a redefining of what the term means. This is something different.
If words are to serve their function for communication, there must be a reasonable degree of consensus on what they mean. Perfection is not achievable, of course, but if people make up their own definitions Humpty Dumpty-style, it becomes difficult to have any kind of meaningful discussion.
Meaningful discussion in this area is important. For presidents and governors (in most states), appointing judges is one of the most important and most enduring impacts they have during their tenure in office. To preserve the Constitution, we need to elect executives who will appoint judges who are not judicial activists as that term is properly used, but who are willing to exercise the power of judicial review where the actual limits of the Constitution are exceeded. I suppose now when a candidate pledges not to appoint judicial activists, we have to ask which definition he is using.
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