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Judicial Activism

James Taranto at WSJ has this piece on the term "judicial activism."  Is the term still useful, or has it been so badly misused that it should be discarded?  He links to this 2004 Cal. L. Rev. article by Keenan Kmiec, who traces the term to a 1947 Fortune magazine article by Arthur Schlesinger.

Taranto quotes Kmiec quoting Justice Scalia saying the term is meaningless, but then,

Kmiec disagrees: "When explained carefully, the term can be a starting point for meaningful conversation about the judicial craft." That may be, and Kmiec's interesting article is a case in point. But when it comes to "judicial activism" as a term of political rhetoric, surely Scalia is right. "Judicial activism" is a shopworn phrase that has outlived its political usefulness.
The purpose of words is to communicate, and when a term will be understood to mean different things by different readers its usefulness is seriously diminished.  You can explain which meaning you intend, but that is a diversion from the flow of thought.

The right meaning of judicial activism, in my view, is largely Schlesinger's original meaning.  Believers in judicial restraint go where the law takes them when the path is clearly marked, even though their preference is for a different result.  Judicial activists decide what result they want and back in the legal reasoning to support it.

If we abandon the term "judicial activism," what should we call this important concept?  Result-oriented judging, perhaps?

Certainly we must not stop talking about it.  Constitutional right number one, the right of the people to govern themselves, depends on it.

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