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Wednesday, September 20, 2017

Modal Activism

Judicial “activism” is, of course, a bad thing—or at least the phrase is usually used to try to discredit a particular judge or decision.  Over the last 40 years or so—roughly coinciding with the rise of contemporary originalist arguments—it has become the go-to accusation for “conservative” critics to hurl at “liberal” jurists.  As such, I think most folks now understand “activist” as short for “non-originalist”; or perhaps “non-textualist” in some cases.  But, in truth, the term is really more narrative-normative than it is descriptive.  That is, as I’ve often heard said, it’s really just a way of describing a decision you don’t like.

In fact, judges can be “activist” in all sorts of ways—including by relying on historical or textual arguments.  On the way back burner of my cluttered mind, I have the thought that it might be useful at some point to write up a modal account of judicial activism, if for no other reason than to attempt some descriptive clarification.  The elevator conversation version of my thought is that activism most often occurs when a judge elevates one modality of constitutional above others in a way that either (1) disrupts reasonably settled practice, or (2) is outcome driven.  Another way to say it, perhaps, is that judicial activism is not tied to any particular interpretive method(s); though it may look different when exercised in different modes.

With that said, here’s a super rough-and-ready modal catalogue of types of activism.  (Not at all meant to be exclusive).

Prudential:  This is likely the modality most often associated with activism today.  Activism occurs here when a judge elevates his/her policy judgments or preferences over existing doctrine, plain textual meaning, historical usages, structural concerns, etc.  I probably don’t need to give an example here—pick your own favorite.

Doctrinal:  This occurs when a judge deliberately, though usually subtly, refines or changes doctrinal meaning.  This often happens over time, as skilled practitioners undermine certain precedential meanings and emphasize others.  As an example, think of how the Chief Justice was able to employ Brown in Parent’s Involved.  The doctrine (over time) has shifted from “desegregation” to “colorblind.” 

Textual: This happens when a judge insists on a possible contemporary meaning of the text that supplants settled doctrine, historical meanings, structural expectations, etc.  Think of Justice Black.  I could point to a number of examples, i.e.,  “I read ‘no law’ to mean ‘no law’” (in the context of the 1st Am); “What part of ‘equal’ don’t you understand?” (In the desegregation context).

Historical:  This occurs when a judge would disrupt well-settled doctrine, textual interpretations, ethical evolutions, etc by insisting on a return to some set of historical usages or meanings.  Think here of Justice Thomas and the Commerce Clause, or the Establishment Clause, or …

Structural:  This happens a couple of ways.  First, think of the use and abuse of justiciability concerns and the “case” or “controversy” requirement.  If you’ve ever taught standing, or political question doctrine, to a group of first years, you know what I mean.  Second, a judge may elevate some structural conception over the text, doctrine, history, etc…  Think of the 10th Am text, the meaning glossed onto it with the so-called “enumeration principle,” and efforts in the last decades to limit the Commerce power.  Third, and this is often subtle, a judge may take more or less seriously the relationship between different levels of judicial institution.  Sometimes deference ties one’s hands, sometimes a different take on the facts is enough to overturn.

Ethos:  This—like prudential activism— probably aligns with most folks’ thoughts today.  This is flag waving, or idealism, used to supplant settled practices or other modal claims.  Think of the repeated citations to the Declaration and the Gettysburg Address in the malapportionment cases of the 1960s.  The ethos of “one person, one vote” carried the day and unsettled a good deal of settled law and practice.

  So again, quick and dirty…  but love to hear your thoughts in the event this ever moves up a few burners.

Posted by Ian Bartrum on September 20, 2017 at 06:54 PM | Permalink


"judicial activism" are cases that we would not publicly defend even if our professor asked us to get up in front of class and defend as our senior thesis.

We can imagine defending advocates that we disagree with (or we think are guilty), but we can't imagine ourselves defending Bush v. Gore or Scalia's dissent in VMI, Lawrence or Obergefell (had they been majority opinions).

It is these indefensible decisions that we call judicial activism, cases like Dred Scot, Plessy, Korematsu, and Gore.

Posted by: the indefensible | Sep 23, 2017 6:42:07 PM

Let's say your 12-year-old daughter tells you she isn't quite getting the concept of "judicial activism" and asks for an example. Whether you're white or black, republican or democrat, the first case that will come to your mind is Bush v. Gore. Why?

Bush v. Gore didn't just feel like it went a little further than it should've gone, or felt like it was playing by a different set of legitimate enumerated rules (that some people you personally love-and-respect value-and-accept),
Bush v. Gore felt like it wasn't playing by a set of rules that has governed and would continue to govern other cases in the future.
Bush v. Gore felt like it was using rationalizations that it dressed up as rules to justify a pre-determined decision that it would deliver whether it could find ideas to justify it or not--a truly unexpected and legally-undefendable injustice that you felt lessened the legitimacy of the court and your respect for it.

You may disagree with Casey, Heller, or Parents Involved, but it's doubtful you had the same kind of visceral reaction that you did to Bush v. Gore (or that our ancestors did to Dred Scot and Korematsu).

You may run on reversing Casey, Heller, or Parents Involved, but you wouldn't mention the case by name to bring your supporters to the ballot box the way you would with Bush v. Gore (or Citizens United).

Posted by: Visceral Reactions | Sep 23, 2017 5:43:57 PM

By activism we mean

an unexpected injustice beyond the bounds of judicial discretion and/or clearly negligent of the law

(1) an injustice--

it's not just that the judge does something we disagree with--like enforce a law we think they should ignore, or give the upper limit of a possible sentence--but flatly ignores a clear enumerated part of the law, like allowing the police to silence people or allow a judge to keep people out of a public trial

(2) that is beyond the bounds of discretion (negligent of the law)

--a judge that gives a sentence of 22 years when the sentencing range is 10-20 is pushing their luck, but they aren't being truly "cruel and unusual" yet, so much as being rudely out-of-the-ordinary. The sentence is at least close to the range, not yet negligent of the range, like a sentence of say 55 years would be

(3) that is unexpected

--if for instance, half the educated adults (of all sexes, races, sexual orientations, etc.) think rights should require a license or a waiting period, it isn't entirely unexpected whether or not the court rules in favor of them--even if you find such a requirement has a disparate-impact on blacks or the poor (it does!).
Regardless of what side you come down on, you can point to no widely-adopted belief that the other side was clearly beyond the bounds of morality or justice (from a democratic perspective; assuming you think that majority-support can give a value legitimacy, even if you still disagree with it)

An unexpected injustice isn't just elevating a privilege into a right (striking down abortion-control or gun-control laws you believe in),
but turning a felony into a right (if you believe owning a machine gun or having a partial-birth abortion is a felony, not just something that should require a license and a waiting period).

If you truly thought these were felonies, you would be just as horrified to find them elevated to rights as you would any other felony--say murder, rape, bank fraud, arson, etc. That would be truly unexpected, as if the legal world were turned upside-down.

Posted by: expect the unexpected? | Sep 23, 2017 5:11:27 PM

"Simple bias could be an over-the-top misuse of judicial discretion"

The equal protection clause of the fourteenth amendment prohibits judicial bias (if you mean taking sex, race, etc. into account), so that wouldn't be within the bounds of discretion--like taking their age, maturity, IQ or lack thereof, prior criminal history, etc. into account.

For instance, a jury can take many things into account, but they aren't supposed to take sex, race, etc. into account--this isn't within their discretion.

If a judge did give a lighter or harsher sentence (a sentence that didn't fit the crime) because someone was youngful but over 17, or female, or white, for instance, we would not just consider that "simple bias" but would consider that a violation of the equal protection clause (ignoring of foundational rights, inexcusable misuse of power)--which violates sentencing taking such immutable characteristics into account.

The reason forced-busing/quotas is so vile and disgusting is for the same reason--that, just like judges, schools are not ever supposed to take sex, race, etc. into account. Forces busing, single-sex/race, segregated schools, quotas/affirmative-action are all equally disgusting because they are all based on the same vile principle that we should take sex, race, etc. into account rather than merely prohibit discrimination based on them.

Posted by: immutable | Sep 23, 2017 4:39:32 PM

I agree with a late comment that there is room to agree on some narrow number of cases, agree in high enough numbers to mean something, but it's unclear to me how much. There will be a lot of disagreement. So, you know, depends ...

"Judicial activism is the inexcusable (over-the-top) misuse of judicial discretion."

That is a rather open-ended definition that runs the gambit of judicial performance. The term "activism" to me generally is used to imply something more narrow. It implies a judge is in a specific way not doing their job. They are being like an "activist," allegedly a biased or at least non-judicial actor. This leads one to wonder what the proper role is to begin with.

Simple bias could be an over-the-top misuse of judicial discretion without to me being what most people think of as "activism" though the two might intersect.

Posted by: Joe | Sep 23, 2017 10:59:18 AM

If you don't have your own concept of what constitutes judicial activism, but are merely looking at all the cases that republicans and democrats call judicial activism, then you'll probably think "some of these cases are good and some bad", just as, if you don't have a concept of morality, but merely look at the things that both liberals and conservatives call ethical, you'll probably think "some of these things are good and some of these things are bad".

But once you have your own ethical code, you will use the term 'ethical' to describe the good, and use 'unethical' to describe the bad. Similarly, once you have decided for yourself when a judge has acted far beyond the bounds of their prerogative, you will know when you think something is "judicial activism" and you will use the term to describe things you fundamentally disagree with.

This is not to say that "judicial activism" is a good word/phrase for what it means to describe "unacceptable/unjust unexpected misuses of judicial power", but that's what people mean when they use the word.

The term was not a reaction to the interpretive methods that were being used, nor the rationales that judges were giving for their decisions, but for the decisions/outcomes they were coming to. It just so happens that in many cases that we fundamentally disagree with, we also disagree with the interpretive method and reasoning behind the decision--but there are cases where we can agree, say, the method of scrutiny, but then disagree with the justices about whether or not the law in question passes the scrutiny in question.

For instance, Stevens agreed that originalism was the right approach in Heller (since that's what he used in his dissent), but disagreed on where that interpretive method took him in resolving the question. He didn't think using originalism was judicial activism, or he wouldn't've done it himself, he thought the outcome was the judicial activism.

Posted by: Still harping on about this | Sep 23, 2017 5:01:11 AM

"there can never be agreement on when any of these has occurred"

The same can be said of a violation of the ethical code, but we still know that there are such things as violations of ethical codes and often times we can identify them and understand why we feel that they are violations of ethical codes vis a vis our own ethical code.

No two people will exactly agree which rights are included under the ninth amendment or which powers are included under the necessary and proper clause (interstate commmerce clause, if you like), but we can all agree that the enumerated powers of congress and the enumerated rights under the bill of rights were not meant to be exhaustive--it is the principles of the ninth amendment and the necessary and proper clause, not their scope, that the amendments are meant to establish.

The point of the term "judicial activism" is to establish that judicial discretion is limited in some way and that the powers of justices under judicial review (or sentencing, etc.) are not unlimited (because we are a government of laws that limit people, and not a government of people that limit the laws). It is that phenomenon that we are agreeing on, not what the examples of that phenomenon that we have witnessed.

Just as we can disagree on ethics, but agree that there are ethics; so we can disagree on when a judge has gone "beyond the pale of anything that could sensibly be called a judicial act" (Stump v. Sparkman, 435 U.S. 349 (1978)), but agree that it is possible for this to happen--that it is a real legal phenomenon.

Posted by: Agreeing to Disagree | Sep 23, 2017 3:35:05 AM

You may be so cynical and jaded (from Bush v. Gore?) that nothing a judge has done has so surprised and disgusted you that you think they have gone so far beyond the bounds of judicial discretion that you would term it judicial activism. And there's nothing wrong with that, we have a word for such nihilistic people, we call them teenagers.

Posted by: Youthful Nietzsche | Sep 23, 2017 1:00:00 AM

Judicial activism is the inexcusable (over-the-top) misuse of judicial discretion.

The ninth amendment, for instance, gives judicial discretion in creating [giving substance to] unenumerated rights to make sure that the enumerated rights don't become paper tigers. But the ninth amendment doesn't give the judge the power to make exceptions to the bill of rights that waterdown the bill of rights into paper tigers.

For instance, if a judge says, people are innocent until proven guilty beyond a reasonable doubt . . . except in rape cases, because the ninth amendment gives women accusers the right to be believed until proven false---that isn't just judicial discretion to interpret rights, but is carving out such an exception to the right [of presumption of innocence] to make it worthless---since it is near impossible to prove you HAVEN'T raped someone--that's why the onus is on the accuser to prove their accusation IN ALL CASES INCLUDING RAPE.

Posted by: De Facto Title | Sep 22, 2017 10:10:22 PM

Did we shift to "posted by" being the de facto title of your comment at some point?

Posted by: Joe | Sep 22, 2017 5:46:51 PM

We have to differentiate between judicial discretion and judicial activism.
If the sentencing range is 10-20 years, and the judge gives 10 years when you thought they should've given 20 years, you'll think the judge was wrong and unjust to the victim, but within their discretion.
If the judge gives 60 years without parole, you'll think the judge violated the eighth amendment and feel that was judicial activism--unexpected injustice.

Posted by: discretion vs. activism | Sep 22, 2017 5:36:57 PM

We can describe a judge as someone who follows precedent, or breaks with precedent, or creates new precedent (for textualist reasons, pragmatic reasons, social justice reasons, etc.). But none of that captures what we mean when we call a judge a judicial activist. Judicial activism isn't just descriptive but is normative. We use it to condemn the actions of the judge, in addition to (or regardless of) describing the actions. We never use the term as an honorific to congratulate a judge on a decision that we agree with--except in jest.

Obama did not say that we should vote for Hillary because she'll put more activist judges on the court. He would instead describe them as Rawlsian or Marshall-ian, or just progressive, but he would not label his own justices as judicial activists, because he believes they are not being active(ly against the constitution), but are enforcing the constitution--without regard to their personal prejudices, etc.

Posted by: callin it like it could've been | Sep 22, 2017 12:58:30 AM

"for activism to be a meaningful term and not just a slur for decisions one thinks are wrong, it has to be possible to describe some decisions that are actually right on the merits, at least the merits of the underlying law bracketing precedent, as activist"

Activist is a meaningful term in the same sense that ethical is a meaningful term. Just because we have different ethical values doesn't mean calling someone unethical doesn't get our point across. Just because we have different political values and judicial philosophies doesn't mean calling someone an activist doesn't get our point across.

We may use the term to describe

-not enforcing a right

-not applying strict-scrutiny

-not upholding precedent

-not creating a new right necessary to give substance to enumerated rights, etc.

But people understand that what we mean by "judicial activism" is "I disagree with the decision and I would've decided it differently" (regardless of which reason above they disagree with it on).

Just as we understand that when someone uses "unethical" they mean "I find it unethical, it doesn't comport with my ethical values--values that I understand our subjective, but values i believe are superior and therefore universal".

That doesn't mean that when our boss calls us unethical we turn around and tell him that his values are subjective and therefore meaningless and the whole point of having values does nothing but turn people into puppets for the church, or something.

Posted by: compart-mentalizing | Sep 22, 2017 12:24:41 AM

People use "judicial activism" to refer to decisions they disagree with.

Nobody refers to themselves positively as a "judicial activist" the way they positively refer to themselves as "liberal" or "progressive".

If someone is labeled a "judicial activist", they reject it and explain why they are not one. They consider it a derogatory term that they need to distance themselves from because they see themselves being labeled it a form of slander.

Posted by: Tipsy but steady | Sep 21, 2017 11:44:11 PM

Brimful, I was responding to Bartrum's doctrinal modality of activism, in which it's activist to "refine or change doctrinal meaning." You seem to think that that's not a type of activism if the doctrine a court purports to be reinterpreting, but is really overruling, is wrong. I don't agree - your definition of activism basically boils down to things you think are wrong - and think that, for activism to be a meaningful term and not just a slur for decisions one thinks are wrong, it has to be possible to describe some decisions that are actually right on the merits, at least the merits of the underlying law bracketing precedent, as activist. However, I don't think that all aggressive reinterpretation of existing doctrine is activist, as I said.

Posted by: Asher Steinberg | Sep 21, 2017 9:44:16 PM

"To me, "activism" means a certain strong usage of judicial power"

Do you mean the striking down of a law?

Reply: Not necessarily. A district court judge, e.g., can strongly use sentencing power very creatively without striking down a law. Or, a law might be interpreted in such and such a way without striking it down.


"When congress goes beyond their enumerated powers, but we don't mind or think it's justified in this current emergency, that's a misuse of power. When congress goes beyond their enumerated powers and we disagree with it, that's an unjust misuse of power. This unjust misuse of power is the activity we're noticing that we term government activism (immoral/unjust activity)."

This is the use of "activism" I don't like. The word "activism" to me does not usually mean "misuse of power." It seems to me that it's suggested that judges are not being neutral. They are being like an "activist" (promoting a cause) instead of merely judging. A sort of artificial usage -- judges have certain jobs. They promote this "cause" in certain cases. So, e.g., Jefferson supported the Bill of Rights in part because judges will "actively" appeal to it to strike down unconstitutional laws. The "government activism" usage is even more misleading.

Posted by: Joe | Sep 21, 2017 8:58:30 PM


Schuette v. BAMN wasn't about precedent, it was directly about the fourteenth amendment. The fact that prior cases had abandoned the equal protection clause for affirmative-action and forced-busing doesn't change the fourteenth amendment. The amendments mean what they mean regardless of supreme court interpretations. If the fourteenth amendment outlawed sex-discrimination (as I think it did), then VMI wasn't wrong because/if it upset precedent, all that precedent was wrong because it upset the fourteenth amendment.

The judicial activism was the precedent that ignored the fourteenth amendment, not the case that overturned the precedent and brought back the "actual" meaning of the amendment.

Posted by: Brimful of Asher | Sep 21, 2017 7:09:03 PM

Just because we disagree on what is judicial activism, doesn't mean we don't have the same intention behind the word and aren't using it genuinely.

We may disagree on what is unethical, but we both know what abstractly mean by being unethical--if only vaguely as "something that we personally subjectively find to not be ethical". We don't say that "unethical" has no meaning because we disagree on what constitutes "unethical". When I call something "unethical" you don't get confused as to my meaning because you disagree with me and think that it is ethical.

We can describe "judicial activism" as "unexpected injustice" while disagreeing on what constitutes "injustice"

Posted by: the dog in the hat | Sep 21, 2017 7:00:34 PM

"To me, "activism" means a certain strong usage of judicial power"

Do you mean the striking down of a law?

But still, we only use the term "judicial activism" when we disagree that the law should've been struck down.

If a politician is talking to their supporters, they do not say that they want to increase judicial activism on the court, because the crowd will interpret it as the judges denying justice rather than increasing justice.

We do not describe ourselves as judicial activists, we describe our opponents as judicial activists--that's how we know we mean "injustice".

A person who described themself as a judicial activist would be seen the same way as a person who described themself as a delinquent or a reactionary or a nihilist.

The judicial activist is seen as someone who's abandoned justice, not just one who is strongly using judicial power. Someone who loves Justice Earl Warren describes him as a revolutionary, not a judicial activist.

Posted by: with great power comes great judicial activism | Sep 21, 2017 6:39:02 PM

I don't really think that being "outcome driven" can be a major part of a definition of activism. "Outcome driven" suggests that there's some alternative to being driven by outcomes, but I'm not sure that that's always the case. When the Court decided major open Fourth Amendment questions, or what rights to incorporate against the states, or whether and to what extent gender was a suspect class, what alternatives were there really to choosing among preferred outcomes? Originalism, maybe, but as you rightly say, an originalism-dominated approach to such questions would arguably be activist in a different way, in that it would sharply deviate from settled interpretive practices.

As to disrupting settled practices, some change seems less activist than other change to me, more evolutionary. Were the New Deal cases activist? You describe Parents Involved as activist, but what about Schuette v. BAMN, an opinion that rewrites an explicitly disparate-impact-based doctrine, the so-called political process doctrine, as an intent-based doctrine? Schuette reimagines precedent far more aggressively and would seem quite activist by your lights, yet I am inclined to think that the true activist decision there would have been to hold that under a rarely cited early-80s opinion by Blackmun, states couldn't amend their state constitutions to ban affirmative action in their public universities. The evolutionary drift of the law supported narrowing that opinion to nothingnesss. On the other hand, a decision faithfully applying Blackmun's opinion would have been quite activist in Kerr's second sense; it would have "expand[ed] the power of courts to determine the rules of our society."

Posted by: Asher Steinberg | Sep 21, 2017 6:28:15 PM

"a way that upsets settled practice"

Mapp and Miranda upset settled police practices, but that alone does not make them judicial activism, or make overturning them NOT judicial activism.

That is, the creation of new precedents (upsetting settled practices) are not necessarily judicial activism. The Warren Courts decisions in Mapp, Miranda, Louisiana, Griswold, etc. were not judicial activism merely because they chose (perhaps subconsciously) to give meaning to the ninth amendment.

The ninth amendment didn't come with a clause that says "don't use me" or "for entertainment purposes only".

The common denominator when a republican or democrat uses the term "judicial activism" is not

-"using the wrong interpretative method" or
-"upsetting settled practices",

but is "unexpected injustice".

Posted by: the angry hatter | Sep 21, 2017 6:12:44 PM

"in a way that upsets settled practice"

If the original case was an example of judicial activism, then the case that rejects it or outright reverses it is not (necessarily) judicial activism.

If you think Plessy or Bowers was judicial activism, then you don't think Brown or Lawrence was. If you think Heller was judicial activism, you wouldn't think reversing it would be.

That's not to say you want a case like Heller reversed, if you think the societal consequences of such reversal (a second civil war) would be worse than Heller has been. But that you wouldn't define such a reversal as judicial activism, because it's just repealing a case that you DID see as judicial activism.

If you think a case was wrong the day it was decided, it is highly unlikely that you think that it should remain the law simply because it's been the law for decades. For instance, there were no dissenting opinions in Brown suggesting that Plessy has been woven into the fabric of America.

If you think a decision was wrong, you don't care how much chaos reversing it causes, because you feel that the chaos it caused initially was far worse than the chaos reversing it will entail.

The chaos that comes from turning to a just society is always preferred to the chaos that comes with remaining an unjust society.

Posted by: chaos theory | Sep 21, 2017 5:35:57 PM

Just one final thought in response: Asking whether the judge has "enforced the law or not" is, I think, question begging in this context. Hence, my qualifications of "disrupting settled practices" etc...

Posted by: Ian Bartrum | Sep 21, 2017 5:32:30 PM

"rather than trying to reconcile, or at least mitigate, modal conflicts, the activist says all other approaches are wrong"

The outcome is the activism, not the dicta.

If in a particular case, the judge says that the historical method is the only proper interpretive tool for the eighth amendment in dicta, but then in this particular case, comes out to a decision you agree with, it is not judicial activism because of that dicta (especially if it's in the part of the decision not joined by the other judges in the plurality).

It's the use of that dicta in a later case, a case in which you disagree with the outcome because you feel that rights weren't enforced, that becomes judicial activism. It's when the court cites the earlier case to justify using that method in this case, to come to a decision you disagree with, that is judicial activism.

For instance, let's say you agree with Roe, but disagree with the interpretation of the ninth amendment in Roe (you think abortion is about autonomy, not privacy). You still don't see Roe as judicial activism. But if the majority uses the method in Roe in Bowers to justify an outcome you disagree with (sex isn't about privacy, so it's not covered by Roe's ninth amendment), then it's judicial activism.

It's the outcome (the consequences) that determine whether the judge has enforced the law or not (and therefore whether it's activism), not the interpretative method or justifications they're using to get to that outcome. You may disagree with the entire line of "privacy" decisions and wish they'd all relied on "bodily autonomy" instead, so they could be extended to Glucksberg. But you still don't see those decisions as judicial activism. You see the outcome in Glucksberg as judicial activism.

Posted by: Dicta Tracy | Sep 21, 2017 5:18:58 PM

Thanks for all the very helpful comments a recommendations. I definitely need to think a little more about this if I decide to actually write on it.

The last few comments are particularly interesting, but just to be clear, what I'm trying to suggest is activism is the use or elevation of a particular modality above all others in a way that upsets settled practice, or is outcome driven. In other words, rather than trying to reconcile, or at least mitigate, modal conflicts, the activist says all other approaches are wrong--even when the general practice has been otherwise.

I'm also not trying to say that activism is--or at least ALWAYS is--a bad thing. The judge is an important constitutional actor. As I've suggested elsewhere, though, we might be best served by some justification of the decision to elevate a particular modality in an activist way in a particular case.

Posted by: Ian Bartrum | Sep 21, 2017 5:01:24 PM

All injustices are not judicial activism. We may disagree with a law, and think the law is unjust, but enforcing that law while it is still on the books is not judicial activism, its just injustice. The judge is just doing their job, taking a passive rather than active role.

It's when the judge takes an active role by refusing to enforce a law (or by adding to a law), that we call that active role they are taking "activism".

People can differ on the contents of the ninth amendment, and not be judicial activists. Thinking that only the exclusionary rule, or only the miranda warning, is included in the ninth is not judicial activism. Ignoring the ninth (perhaps by calling it an inkblot), is judicial activism, as much as ignoring the first, second, or fourth would be.

Posted by: role-playing | Sep 21, 2017 4:58:41 PM

"It to me is not by definition a misuse of power."

Correct. It is an unjust misuse of power.

When congress goes beyond their enumerated powers, but we don't mind or think it's justified in this current emergency, that's a misuse of power. When congress goes beyond their enumerated powers and we disagree with it, that's an unjust misuse of power. This unjust misuse of power is the activity we're noticing that we term government activism (immoral/unjust activity).

When the court says that to make the fourth and fifth amendment meaningful and to ensure they're enforced, the ninth amendment requires the miranda warning and the exclusionary rule--you may disagree with their conclusions (misuse of power), but you would not call it "activism" (negligent injustice) the way you would call a person being denied a trial or a lawyer "activism".

And the interpretative method (reason) used to justify not giving the person a trial ("it's wartime", "all the jurors are prejudiced because of pre-trial news-reports", "it's only a misdemeanor", etc.) is irrelevant to whether or not it's judicial activism. It's activism because the judge ignored, or refused to enforce, an expected human right.

Posted by: balls and labor strikes | Sep 21, 2017 4:51:04 PM

I think you're listing different types of reasons FOR judicial activism, rather than the different types OF judicial activism.

A judge may justify their judicial activism by saying that it's textual/literal, historical, precedential, etc. But these are explanations for why they are using their interpretative method (or the interpretative method itself that they are using), they are not in themselves forms of judicial activism.

Unless any and all forms of interpretation are judicial activism, in which they are the same thing and there's no such thing as judicial activism, it's just a slur for "interpretative methods you don't like", or a slur for "the case came out wrong".

When we agree with the interpretative method used, we don't call it judicial activism, which is how we know they're different. When a judge says that historically, equal protection means non-discrimination, we don't call it judicial activism just because we think they should have said that the clause literally means that rather than historically means that or ethically means that. As long as the case came out right, we don't care about the interpretative method used (to get to that outcome).

It's not the way the judge came to interpret the clause that makes it judicial activism, its the interpretation of the clause itself that makes it judicial activism. If they're interpreting it the way you want (like using strict scrutiny), you don't care what their interpretative-method/justification for using that level of scrutiny is. It's when they're using the wrong level of scrutiny and either (1) striking down a just law, or (2) upholding an unjust law, that you call it judicial activism, i.e. negligent injustice.

Posted by: the method and the madness are two different things | Sep 21, 2017 4:33:33 PM

We should not combine interpretative methods and judicial activism, otherwise we will be defining strict-scrutiny of rights we disagree with as activism and defining rational-basis-scrutiny of rights we agree with as activism.

If we are going to think of it this way, we should define rational-basis (whenever used) as judicial activism, but then they just become synonyms rather than different things, and rational basis isn't always judicial activism (or if it is, the two aren't different things, and we know they are, that's why we use the terms differently).

Activism is the activity we notice that we call negligent injustice, or the ignoring of rights we expect to be enforced. Whereas judicial passivism is when we don't notice any activity because the court/judge is enforcing the rights we expect to be enforced.

Just because rights are being enforced doesn't mean the case will end with the outcome we want. The accused may have all their rights recognized and yet in the end still be found guilty by the jury. But so long as their rights were recognized, the injustice wasn't judicial activism.

Posted by: interpretation doesn't equal activism | Sep 21, 2017 4:12:39 PM

I concur with the first comment generally.

To me, "activism" means a certain strong usage of judicial power, which can occur in a variety of ways. It to me is not by definition a misuse of power. But, yes, that is often how it is used. More as a buzzword.

But, I do think the categories -- patterned by a famous break down of interpretative mechanisms -- is a useful discussion path.

Posted by: Joe | Sep 21, 2017 12:25:03 PM

it's worth mentioning Keenan Kmiec's 2004 article in the California Law Review, "The Origin and Current Meanings of Judicial Activism," which does a nice job exploring the history of the term.

Posted by: anon | Sep 21, 2017 10:04:37 AM

Some forms of activism (ignoring or failing to enforce the law)

-ignoring enumerated rights (freedom of speech, freedom from discrimination and equal protection)

-ignoring unenumerated rights, rights that make rights meaningful or make sure they're enforced (exclusionary rule, miranda rule, abortion)

-ignoring don't-need-to-be-enumerated "axiomatic" rights (presumption of innocence, innocent until proven guilty, right of self-defense, etc.)

-ignoring definition-of-rights rights (no licenses, no fees, no waiting periods, no background checks)

Having to pay a fee to exercise a right, being presumed guilty unless you can prove your innocence, having evidence gotten without a warrant, or being forced to confess rather than having the freedom of speech to remain silent---are all forms of injustice, and it's this denial of justice which we call judicial activism.

Posted by: grinding the axiomatic | Sep 21, 2017 4:34:25 AM


Seventy percent of likely voters are supportive of school choice the poll, commissioned by pro-school choice American Federation for Children (AFC), finds. Support is even higher in minority groups and with millennials. Seventy-six percent of blacks, 76 percent of Hispanics and 75 percent of millennials support school choice.

Just 24 percent of likely voters oppose school choice, the poll found.

Posted by: School Choice is the first freedom | Sep 20, 2017 11:53:29 PM


The results are similar to Education Next’s 2015 survey, which found that 58 percent of blacks nationwide supported universal school vouchers and 66 percent supported vouchers for low-income families.

The survey also asked about black voters’ views on charter schools (about two-thirds support them), “parent choice” generally (three-quarters support it), and the importance of testing.

Posted by: School Choice ends slavery | Sep 20, 2017 11:51:54 PM

"As an example, think of how the Chief Justice was able to employ Brown in Parent’s Involved. The doctrine (over time) has shifted from “desegregation” to “colorblind.” "


Eighty-two percent of those polled say letting students go to their neighborhood schools would be better than achieving racial balance through busing. Support for this position is highest among whites (87%), while blacks are split on the question -- 48% would prefer to keep students in neighborhood schools, while 44% support busing of students to achieve racial balance. Even 72% of those in the 18-29 age group -- who generally agree that integration programs have helped -- tend to believe that letting students attend their neighborhood schools is better than busing.

Posted by: Forced busing is slavery | Sep 20, 2017 11:35:29 PM

Commerce-Clause activism--the court grants the government powers it doesn't have under the Tenth Amendment.

Wartime Activism--the court completely ignores basic enumerated human rights, like not giving each and every Japanese person a speedy, public trial by jury of one's Japanese peers with presumption of innocence.

Rational Basis Activism--the court applies rational-basis scrutiny to a right turning it into a privilege, like requiring people to pass a test, pay a fee, get a permit, or go through a waiting period before one can exercise an inalienable right.

Social Justice Activism--the court makes exceptions for rules, like allowing affirmative action or forced busing, despite the right not to have one's race taken into account under non-discrimination.

Posted by: Mode 7 graphite | Sep 20, 2017 11:26:42 PM

My somewhat similar effort to catalog the different ways we use the term "judicial activism" is here:

Posted by: Orin Kerr | Sep 20, 2017 11:11:09 PM

Activism (non-originalism) is when a judge specifically ignores a specific enumerated right. For instance, they make an exception to freedom of religion (the army can ban yarmulkas) or right to counsel (it's just a misdemeanor, so they don't need a lawyer), or the ex post facto clause (doesn't apply to "sex offenders").

Light Activism (Alt-Light) is when a judge applies rational basis scrutiny rather than strict scrutiny to a specifically enumerated right--and therefore waters down the right into a privilege, like upholding speech-control laws or voting-control laws (like upholding poll taxes or literacy tests).

Liberalism is when a judge applies strict scrutiny (first amendment scrutiny) to specifically enumerated rights, like not making exceptions to freedom from self-incrimination or a speedy, public trial by jury (i.e., no plea bargains).

Warren-Court ("American") Liberalism is when a judge applies strict scrutiny to unenumerated rights ("ninth amendment liberties"), like not making exceptions for the exclusionary rule, the miranda warning, presumption of innocence in rape cases, etc.

Posted by: active tyranny | Sep 20, 2017 9:18:55 PM

Interesting list. I maintain, though, that the problem remains that there can never be agreement on when any of these has occurred.

Posted by: Howard Wasserman | Sep 20, 2017 9:03:46 PM

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