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Thursday, June 26, 2008

The Rhetoric of Judicial Activism

Andy makes a great argument that the divide on the current Court really is about substantive constitutional vision, and not about the role of the courts in enforcing and implementing those competing visions. He also points out, rightly, that the rhetoric--on the Court, in political debate, and in the MSM--has not caught up to this substantive reality. Everyone still talks about "liberal activism v. conservative restraint and deference to the democratic processes," even when what is going on is differences of judicially established substantive constitutional theories and ideas.

I wanted to add some thoughts on this.

1) The disconnect between rhetoric and substance is unfortunate for purposes of political debates. It has allowed candidates (usually Republicans, to their benefit) to speak about "courts run amok" as a way to appeal to voters, without having to discuss substantive constitutional ideas or why a particular decision is substantively wrong. And it has allowed the media to parrot that line. As a result, political debate never reaches the meaningful issues.

2) I agree that the rhetoric of constitutional politics is untenable. But I am less optimistic than Andy seems to be that the rhetoric is going to catch up because the competing political pigeonholes are too easily employed. Judges in the minority on an issue still throw the word activism around--a move that invariably gets picked up in the political branches and the media. It is too easy for Presidents, legislators, and candidates to decry the activism of a decision, rather than explaining what is substantively wrong with it. And it is too easy for the MSM to trot out the simplest explanation for complex concerns. Discussing substantive constitutional visions is hard, especially within the confines of an election.

3) Andy anticipates a birth of some neo-Thayerism. Does he think the recent visions put out there by Larry Kramer or (particularly) Mark Tushnet qualify?

4) Andy suggests Heller might shake-up the common rhetoric and force an honest discussion of constitutional reality. Relatedly, Eugene Volokh anticipates John McCain perhaps using Heller to argue to independent gun-rights supporters that their ard-won right hangs by a single vote on the Court (aping a line often used by abortion-rights supporters). If McCain is that explicit, then perhaps we will get into that substantive discussion of the Constitution and constitutional rights.


Cliff Sloan, participating in Slate's annual End-of-Term Supreme Court Breakfast Table (along with Dahlia Lithwick, Jack Goldsmith, and Walter Dellinger) makes the similar point that we should "retire the label of 'activist' once and for all, and have at it on the issues."

Posted by Howard Wasserman on June 26, 2008 at 03:16 PM | Permalink


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I second Andy's point. My original argument (and Andy's, I think) was that everyone on this Court was engaged in the same judicial enterprise, but the rhetoric of judicial activism/judicial restraint still dominated the political narrative. And that is unfortunate and something that we should look to eliminate.

Posted by: Howard Wasserman | Jun 27, 2008 1:19:20 PM

How about we admit that all nine Justices on the Court are non-Thayerians (call them "activists" if you want) and retire the rhetoric of "activist" vs. "strict constructionist" from partisan politics? I'd settle for that.

Posted by: Andrew Siegel | Jun 27, 2008 12:42:08 PM

I don't see why it's necessary, let alone something to be desired, to "retire" the concept of judicial activism. As you point out, one can be very much for or against activism depending on how one thinks of Thayer's view. Thayer's position is a perfectly coherent (and in my view, admirable) way of thinking about the judicial role.

Posted by: anon | Jun 27, 2008 10:58:14 AM

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