Posted by
Josh Kon on Friday, December 19, 2008 4:09:34 PM
Unfortunately, "Judicial Activism" has become a term so widely used -- or for that matter, misused -- that it has lost most of its meaning. Like "neo-conservative," it no longer has a concrete, substantive meaning; it is just used by many as an epithet, arbitrarily thrown at people they don't like.
Now, this does not mean that these words don't actually have a fixed meaning. It just means we need to re-establish it. While I have already attempted to re-establish the reasons why we should find Judicial Activism repulsive, at this point, a reference to some legal jurisprudence seems appropriate. So here we go:
The problem of "Judicial Activism" has, ironically, been recognized as repugnant by the same judges that routinely engage in it. The Political Question Doctrine is a widely accepted notion of judicial restraint. It maintains, quite correctly, that the courts are ill-equipped to deal with some types of issues -- in this case, politics. Sure,
the question of whether, for example, a battery occurred—i.e. whether
someone intentionally touched someone else in a harmful or offensive
way—is well with a court’s area of expertise. There is little nuance
for a court to apply. Using a handful of pre-existing rules and excuses
for such conduct, the court can adjudicate justly. But this is not the
case when we deal with politics. And most wise judges know that.
Politics
requires a far more nuanced approach. The question of whether we should
institute school vouchers, for instance, is not something that can be
concluded by merely invoking a few prior rules. Thus, clearly things like the use of
military force or how a society deals with the value of the unborn should be determined by political debate and compromise,
and not the relatively cold decision-making process of a court.
So, in essence, this doctrine concludes that democratic representatives who engage in debate and compromise, can better adjudicate the complex political and cultural issues that a society inevitably faces. In other words, it embraces democracy -- the once revolutionary idea that we can govern ourselves better than a monarchy or an oligarchial group, like the life-tenured and unelected Supreme Court.
Thus, through the prism of this doctrine's wisdom, we can be more clear: It is in fact when a judge abandons this wisdom, and imposes his own political preferences on that democracy, that he engages in "Judicial Activism."
So why it this so bad? In fact, I am sure I could find some who think it is a good thing; maybe a democracy should have to listen to the orders of a few wise judges -- those people would say -- even if that does amount to an oligarchy.
It is to those confused people that I would respond: it is bad because even as oligarchies go -- and they go poorly -- judicial oligarchies are the worst kind. A regular oligarchy, at least in theory, is or can be more macro-oriented. Meaning, it is less confined by micro sets of facts that are currently before it and it can thus better focus on the broader picture.
Yet, judicial oligarchies do not even have that luxury. A judge is largely bound by the "case and controversy" before it. That is to say, even though the case may have far reaching implications (see Roe v. Wade) the judge is at least ostensibly claiming to bring justice to the parties currently in front of it. Thus, while a regular oligarchy can remain more focused on the big picture, a judicial oligarchy is more likely to be blinded by the emotional plea of the injured litigant, and thus not worry as much about the trickle-up effect of its decision -- effects that frequently cause terrible results.
As I explained in a previous post, for any law, no matter how just, one can come up with a micro situation where the law's result will be unjust. Therefore, a judge is more likely to take this micro injustice, let it pull on his heart strings, and then foolishly make it the global law. At the very least, intellectual honesty demands that one admit that a judge is more susceptible to such ill-humors than would a normal oligarchy -- let alone democratically-elected representatives.
For that reason, if one believes in the superiority of democratic decision-making -- and I sure do hope there are a few of you still out there -- you should abhor judicial activism, and join forces with the rest of us who wish to eradicate it from within our midst.