Sunday, September 19, 2004

Judicial Activism

Doing Things With Words has a new post on
judicial activism and mob rule. A paragraph which I think summarizes one of his key arguments is that, in reference to the views of Alexander Hamiliton (author's boldface),
This speaks directly to the heart of the matter. Obviously, if the FMA passed, the FMA would become part of the "established form," and it would be impossible for the judiciary to overrule it. If they attempted to do so, that would be judicial activism. However, Hamilton clearly expresses the sentiment of the founders in saying that the judiciary must protect the rights of the people even when the majority would have them do otherwise. Therefore, cases like Lawrence v. Texas, Roe v. Wade, and so on - which conservatives deride as creating new rights - are, at least potentially, examples of the court doing precisely what it was intended to do.
This is an argument that I find persuasive, and it does encapsulate a point that a lot of conservative pundits try to ignore when writing about judicial activism. The big flaw in this type of defense of judicial activism is that the judge will not be any more or any less susceptible to the misguided use of power than any other government official. I am sure that all judges, and even the activist ones, will be the first to admit this point. After all, why else would judges bother to offer written justifications of their rulings if the legitimacy of their rulings was above question?

Legitimacy is not necessarily going to be a stumbling block for the judicially activist judge. The accord that a judge's rulings make with the best interests or sentiments of the body politic is as much a source of legitimacy as the soundness of the judge's reasons for his rulings, and a defense of the true rights of that body politic may presumably have a rock-solid grounding in reason as well. It is those rulings where a judge admits a need for legitimacy but can only provide it on unreasonable terms where we should be suspicious that a misuse of power is talking place. We all know the symptoms that someone is attempting to claim a false imprimature of reason for a bad idea: naked appeals to authority, reasoning ranging from specious to ridiculous, and deliberate obfuscation of the facts. I suspect that it is the tendency of certain activist judges to insult the intelligence with their legal justifications that is the source of the use of the phrase "judicial activism" as a pejorative.

A second aspect of the argument presented by Doing Things With Words that I find a little less persuasive is the notion that conservatives who decry judicial activism are interested in some form of mob-rule or unlimited government power. Is there any reason why legislators and executive officials cannot be just as interested in the rights of the minority or setting forth the limits of government as judges? Is there any reason to believe that serious conservatives who decry "judicial activism" aren't just as critical about "legislative overreach" or "executive tyrrany"?


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