Exploding the myth of conservative disdain for judicial activism


 One of the great political falsehoods of our time is that conservatives are opposed to what they call “judicial activism” while liberals are all for it.

 We’re hearing a lot of this nonsense in the current debate over President Obama’s nomination of Sonia Sotomayor to the Supreme Court.  “Stop her!” shout the right-wingers. “She’s an activist judge.”

 But what is judicial activism?

My favorite definition of the term is something I saw the other day among comments on another blog. Judicial activism, said the writer, is “anything any court prescribes or proscribes that pisses me off.”

 While there’s no official definition of judicial activism, the typical conservative take on the matter, as I understand it, is that activist judges are inclined to substitute their opinions for those of the elected representatives of the people. The activists, in effect, make laws from the bench by striking down (or recklessly expanding) laws enacted by elected legislators at the federal, state or local level. That’s what happened when the Supreme Court voided state laws against abortion.

 The opposite of judicial activism, according to the right-wingers, is judicial restraint.  The theory here is that judges should interpret the law — that is, rule on its applicability in certain circumstances — rather than override the stated will of the people’s elected representatives by throwing out the whole statute.

 John McCain put it this way last year:

The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it…

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of “judicial activism.” But real activism in our country is democratic. Real activists seek to make their case democratically — to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and activist judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don’t seek to win debates on the merits of their argument; they seek to shut down debates by order of the court. And even in courtrooms, they apply a double standard.

Some federal judges operate by fiat, shrugging off generations of legal wisdom and precedent while expecting their own opinions to go unquestioned. Only their favorite precedents are to be considered “settled law,” and everything else is fair game.

 But in reality, right-wingers are at least as much in favor of judicial activism as liberals are; they’re just loath to admit it. How many conservatives were disappointed when the Supreme Court overturned a local ban on handguns in Washington, D.C., last year? None that I know of.

 Here was an ordinance that had been adopted by the duly elected representatives of the people of Washington, just as similar ordinances in other locales had been adopted by elected officials.

 The high court had no precedent on which to rely in making its decision.  Never before in the more than 200 years since the Bill of Rights was adopted had the Supreme Court said that the rights afforded by the Second Amendment apply to individuals.

 Never before had any of the tens of thousands of gun-control laws in this country been overturned by the Supreme Court on Second Amendment grounds.

 The folks who wanted to overturn the Washington ordinance and others like it didn’t pursue the matter in the way that McCain prescribes.  They didn’t persuade the people’s elected representatives to repeal the handgun ban. No, they did what McCain said is wrong to do: They got a court to act in their favor.

 Mind you, I actually agreed with the court’s ruling in the D.C. handgun case, but I also recognized the delight among right-wingers as hypocritical, given their vaunted hatred of judicial activism.

 In a sense, many, if not most, cases decided by the Supreme Court involve judicial activism. When five or more justices deem a law or ordinance — or even the outcome of a referendum — to be violative of the Constitution, they are engaging in judicial activism. They are making law from the bench. Actually, they are undoing law from the bench. They are saying that laws banning handguns or banning abortions or banning flag-burning or barring black folks from public transportation are null and void. It happens all the time.

 A great irony in all of this is that there are two studies showing that judicial activism, as it’s popularly defined, has been more common in recent years among conservative justices on the Supreme Court than among liberals.

The numbers are HERE.



  1. Mike Carroll

    My Goodness, where to begin. The D.C. ordinance was a gun ban, not a limitation on gun ownership or gun usage as is the case with the hundreds of gun control ordinances which have withstood court challenges.
    Of course there was no precedent. The issue (banning guns) had never come before the court since no other governing body had ever gone so far as they tried in D.C. It was a direct challenge to the clear, at least to me and a majority of justices, language of the 2nd amendment and certainly the intent of the authors of that amendment.
    I believe that reasonable gun control is allowable under the Constitution but an outright ban, or restrictions so severe as to amount to the same, is clearly not. Deciding such a case is exactly why we have the Supreme Court.
    If you are looking for an example of conservative Judicial activism, you will need to do better than that.

  2. shawnnews

    When the Supreme Court sided with the Bush team in the 2000 saying that Florida could halt its recound of ballots, I;m sure conservatives did not scream about judicial activism. I’m sure they got on their high horse and screamed about how the democrats must now submit to the rule of law.

  3. Mike Carroll

    When the Florida Supreme Court made the ruling that finally made its way to the US Supreme Court as Bush v Gore, the Chief Justice of the Florida Court, a Democrat appointed by a Democrat, warned the other Justices that their ruling would not stand judicial review. He was right.
    Judicial activism-no.
    Sour grapes-yes.

  4. Mike Carroll
  5. Nice try, Mike Carroll, but your distortions of the D.C. gun case will not stand. You say that “the issue (banning guns) had never come before the court since no other governing body had ever gone so far as they tried in D.C.” Nonsense. Numerous other locales had long had similar bans on handguns. Besides, there are countless federal, state and local bans on various kinds of firearms. Nor did the court, in this D.C. case, come up with the sweepingly liberal interpretation of the Second Amendment that we hear from the likes of the NRA. Indeed, the court’s opinion specifically stated that “we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment,” and it went on to say that numerous other gun-control measures were not affected by the ruling.

    The point of my post was that conservatives generally hailed the court’s action in this case (as did I), despite the fact that it involved judges overturning an ordinance enacted by the elected representatives of the people, which is cause for bellyaching by right-wingers (judicial activism!) when the decision goes against their preferences.

    All I’m saying here is that disdain or favor for judicial activism depends on whose ox is being gored.

  6. By the way, Mike, are you a descendant of Charles Carroll, one of the signers of the Declaration of Independence?

  7. Mike Carroll

    Pat-family legend says that we are related (brother of my great,great grandfather was his father or something like that) but no one has ever been able to confirm a connection. Birth records were a bit haphazard back then. Carroll in Ireland is like Smith in the US, a very common name.

  8. Mike Carroll

    “All I’m saying here is that disdain or favor for judicial activism depends on whose ox is being gored.”
    I don’t necessarily disagree with that comment but I am a Constitutional purist who abhors any judicial activism, liberal or conservative.
    An example would be the cited above Bush v Gore. As you know, the Supremes rendered two opinions, a 7-2 ruling that the Florida Supreme Courts decision violated the Equal protection clause of the Constitution and a 5-4 ruling that ended the legal process. I liked the result of that 5-4 decision but I know that a case can be made that the court overreached with that decision. I think it should have been remanded to the Florida Supreme court. Chances are they would have mucked it up again but still that, in my opinion, is what should have occured.

  9. Franklin Pierce

    Hmm. If judicial activism is defined simply as the act of either overturning a decision, or upholding it — then the court has been filled judicial activists from the day it opened. That’s what the justices do. To evaluate whether a decision moves from interpreting the laws to making laws requires a deeper analysis of the facts and the law and the decision, on a individual case-by-case basis.

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