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Thursday, August 24, 2017

The emptiness of "judicial activism"

The latest Slate Dialogue between Judge Posner and Judge Rakoff considers the meaning of judicial activism and judges using the bench to effect social change. Neither Posner nor Rakoff is having it. Both reject the idea that there can be judicial activism, that there is some clear "existing law" to be departed from in an activist decision, and that common law courts do not "make" policy. It ends up as a somewhat silly conversation, with the moderator putting forward every bromide about activism and misuse of the judicial power (even quoting Wikipedia's definition of judicial activism) and Posner and Rakoff rejecting the premise at every turn. But it shows the emptiness of the term and the concept of activism, which Rakoff labels a "myth."

Posted by Howard Wasserman on August 24, 2017 at 11:26 PM in Howard Wasserman, Law and Politics | Permalink


Professor Horwitz,

On this subject, I am reminded of Supreme Court Justice Kagan, generally speaking in regards to Dr. Seuss, "One Fish Two Fish Red Fish Blue Fish"

"Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress. Rodgers, 466 U. S., at 484."

"If judges disagree with Congress's choice, we are perfectly entitled to say so in lectures, in law review articles, and even in dicta. But we are not entitled to replace the statute Congress enacted with an alternative of our own design."

True, for that would undoubtedly be judicial activism.


Posted by: N.D. | Aug 29, 2017 4:23:32 PM

Whatever "judicial activism" is, isn't, or has come to represent; it is not easily measured: In Search of Judicial Activism: Dangers in Quantifying the Qualitative, 74 Tenn. L. Rev. 567 (2007), https://ssrn.com/abstract=1003542. The phrase is problematic for reasons mentioned. Still if defining and discussing it aids in determining proper judicial role, the more conversation, the better.

Posted by: Caprice Roberts | Aug 26, 2017 1:37:42 PM

"American courts are more political than the courts"

I would be interested in a comparative look at courts in democracies, which in the post-WWII era have repeatedly adopted some form of judicial review.

Posted by: Joe | Aug 26, 2017 12:05:51 PM

Taking the comparative perspective, I think it is obvious that American courts are more political than the courts in many other democracies. So I don't accept the notion the view that it is somehow utopian to hope for the judges' political views not to affect their rulings.

Posted by: Jr | Aug 26, 2017 11:51:19 AM

Suzanna Sherry does argue we need more invalidation of laws. In my view, though, her argument is remarkably weak for reasons I explored here: http://volokh.com/2013/08/20/an-unhelpful-way-to-measure-the-consequences-of-striking-down-legislation-a-response-to-sherry/

Posted by: Orin Kerr | Aug 25, 2017 9:44:26 PM

I don't think that his second definition collapses. The key is that it's not about whether a decision itself "determines the rules of our society," but the meta-question of whether it expands the courts' power to do so. Overruling Chevron or loosening standing doctrine or replacing deferential standards of constitutionality with less deferential ones does that in, I think, a trivially obvious way. Which I don't intend as a criticism of any of those things, though I would be inclined to criticize the first and third on the grounds that they arrogate power to the courts in areas where law is indeterminate and the decisions that remain to be made are essentially legislative in nature - but I don't mean to suggest that accurately describing some decision as activist is sufficient to show it's wrong or even partially mistaken; it may be that activism's a good thing. That said, I don't think the indeterminacy of law renders all substantive definitions of activism incoherent, if only because (as most people will agree) not all law is indeterminate and a coherent definition of activism therefore may be a denial of deference to the political branches in cases where the law is indeterminate in addition to cases where the law is not.

Posted by: Asher Steinberg | Aug 25, 2017 2:08:51 PM

"judicial activism is any exercise of judicial review that results in a declaration that the law is invalid"

Lol. And, exercise is getting out of bed in the morning?

I think the word is abused and often is used for something akin to "doing something I don't like," but do think it has some neutral meaning. One meaning for me would compare it to minimalism.

"Activism" is seen by some as basically "bad," but that is a tad circular. The courts being more active at times very well is warranted. The devil is in the details. But, the word has so much buzzword usage that it does often have more heat than light.

Posted by: Joe | Aug 25, 2017 2:01:39 PM


I appreciate your 2012 post. My argument has been (and continues to be) that the first three definitions inevitably collapse into "I know it when I see it," both because of law's indeterminacy and the inevitable role of policy and ideology in giving content to those indeterminate rules (the points Posner and Rakoff make). The problem I have with J/A is that it distracts from a discussion of the content of the decision.

The only definition that does not collapse is # 4, which is Suzanna Sherry's argument--judicial activism is any exercise of judicial review that results in a declaration that the law is invalid. And, she argues, we need more J/A, not less.

Posted by: Howard Wasserman | Aug 25, 2017 1:06:37 PM

On this subject I am reminded of what Mark Twain said when asked whether he believed in infant baptism.

Posted by: Paul Horwitz | Aug 25, 2017 11:09:06 AM

I like Professor Kerr's second and third definitions of activism because they clarify that overruling or severely narrowing Chevron would be a hyper-activist decision.

Posted by: Asher Steinberg | Aug 25, 2017 10:40:26 AM

Thanks for that interesting post , the issue is really complicated , but , one should notice :

That such term as " judicial activism " exists and is used , but , the issue is whether it does represent something particular , real , outstanding , or just , false perception and interpretation of reality .

Indeed , it does exists and used , but , represents false perception . Why ?? simply because of the fact , that the daily job of a judge , has to do with " judicial activism " yet , falsely given to it , particular outstanding meaning . This is because , a judge , must interpret the law . When the interpretation is far and seemingly detached from the wording and phrasing , people tends to attribute to his work : undue activism . Closer and more attached to the wording or phrasing of the law , then more : passivism … and conservatism is attached .

Whatsoever , this is the job of the judge ( remoter interpretation not once ) and why ?? well :

- First , the legislator , or parliament members are not competent to legislate . They are not expert in law . Judges need to re- set or re – adjust the law , in light of given case , by that , they become sub – legislators .

- Second , The lawmaker has subjective intent , yet , reality , cases actually , are detached not once , from the subjective perception of the lawmaker , or his original intent .

- Finally , the law is one thing , yet , harmony of laws or codes , constitutionalism , and other objective principles , are an issue , must be resolved by the judge . One given interpretation , must fit the whole system , not only solving a particular case .


Posted by: El roam | Aug 25, 2017 7:32:03 AM

As for whether judicial activism exists, I'm reminded of the reaction of Alan Dershowitz when a student criticized a Warren Court liberal decision as an example of judicial activism back when I was in law school. But judicial activism doesn't exist, he excitedly insisted, as there simply no such thing. "And besides," he added, "conservative Justices are more judicial activists than liberals are!"

Posted by: Orin Kerr | Aug 25, 2017 1:13:06 AM

I tend to think the concept is actually very important and meaningful. The problem is that the phrase "judicial activism" has been given a few different definitions, and discussions of judicial activism usually don't start by defining which definition they have in mind. This discussion is no different, I think. Once you define which version you have in mind, you can speak productively about it, I think. More on that theme here: http://volokh.com/2012/04/09/the-different-meanings-of-judicial-activism-and-why-they-matter-for-the-individual-mandate-case/

Posted by: Orin Kerr | Aug 25, 2017 1:06:53 AM

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