Judicial Activism A Tempest, or a Tempest in a Teapot?

By Mark Franek

udicial activism – the phrase – has been co-opted by political advocates of all stripes. It is used to describe a variety of suspected “beyond the powers” judicial activity. The debate has reached J the highest court in the land. In the 2012 book “Reading Law: The Interpretation of Legal Texts,” Justice Antonin Scalia bemoans judicial activism and what he and his co-author describe as “the judiciary incrementally tak[ing] control of larger and larger swaths of territory that ought to be settled legislatively.” In an August 2013 interview with The New York Times, Justice Ruth Bader Ginsburg also invoked judicial activism, speaking of the current court and its conservative leanings: “If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” Finally, something Justices Ginsburg and Scalia can agree on: their colleagues down the hall are guilty of judicial activism.

Definition and Brief Historical Summary referred to the federal judiciary as a “despotic branch” of “Black’s Law Dictionary” defines judicial activism as “a government. Newly minted attorneys may recall Marbury v. philosophy of judicial decision-making whereby judges Madison, that foundational constitutional law case about the allow their personal views about public policy, among other infamous appointment of “midnight judges,” the undelivered factors, to guide their decisions, usually with the suggestion commission letters, and a writ of mandamus that the court that adherents of this philosophy tend to find constitutional validated but never invoked due to a procedural error (lack violations and are willing to ignore precedent.” The phrase of jurisdiction). Marbury established the Supreme Court as was coined by Arthur Schlesinger Jr. (historian and social the ultimate arbiter of constitutional interpretation, trumping critic), who introduced it in a January 1947 Fortune magazine the authority of all lower courts and elected offices, including article. Schlesinger – portending decades of public debate Congress and the president. Chief Justice John Marshall, about the term’s precise meaning and implications – failed to author of the opinion, underscored: “It is emphatically the define the term and say whether it was good or bad for the province and duty of the judicial department to say what the court system and the country. law is.” Marbury created the concept of judicial review, the The practice of castigating the judiciary, however, is nearly very grinding wheel at the center of what would become the as old as the republic. Thomas Jefferson, as early as 1804, sprawling machine of the modern legal profession. Although

40 the philadelphia lawyer Summer 2014 Jefferson never used the phrase of the judicial equation in all but a rare they only apply it. It is true that in our “judicial activism” when railing against outlier’s calculus. system judges are not supposed to and “despotic” federal judges engaged in In Justice Scalia’s framework, generally do not make new law with the process of judicial review, he very judicial activism must be combated the same freedom that legislatures well might have, had the term been in by an interpretive principle called can and do; [. . .] but the fact remains use. textualism, where words, “in their full that judges make, and do not just The Contemporary Debate context, mean what they conveyed find and apply, law.” Legal scholars to reasonable people at the time they may recognize here an echo of Oliver Today, judicial activism is often were written – with the understanding Wendell Holmes’s famous caveat: “I shorthand and a “dirty” phrase for a that general terms may embrace later recognize without hesitation that judges person’s view of a judicial ruling that technological inventions.” Some have do and must legislate, but they can do does not align with his or her worldview. accused Justice Scalia of invoking so only interstitially; they are confined It is the dissenting opinion, writ large a false dichotomy: either a judge is a from molar to molecular motions.” – Fox News versus MSNBC, Drudge textualist, or a judicial activist. His Holmes’s metaphor was familiar in Report versus Daily Kos. A less cynical his day—the rules of the legal system view is that judicial activism describes dictate the decision in most cases, but an inherent tension in the judicial “I recognize when a gap in the law occurs, a judge process itself. For example, before a must legislate. And there’s the rub. judge issues a ruling, he or she must without hesitation One person’s appropriate gap-filler is sip from the waters of stare decisis and another person’s example of “judicial then advance to the very crossroads of a that judges activism.” new fact pattern and decide which way Shifting the Conversation to go: How are these facts analogous do and must to, or distinguishable from, what has legislate, but they A more fruitful approach hoists the gone before? Some commentators discussion out of the entrenched camps have argued that a judge cannot travel can do so only of the binary debate (this ruling versus down this road and make choices while that ruling). Instead of getting mired in simultaneously and totally screening his interstitially; they a case-specific (micro level) argument, or her judicial mind from the intricate are confined from the emphasis shifts to how people with nature of life’s experiences, including leverage in the system – bench, bar, social and political influences. molar to molecular and corporate and community leaders Justice Scalia, however, has been – can expand “avenues to justice” on a vocal critic of this “approach” and motions.” a case-management (macro) level. In he has used the weight of his position the civil context, this approach or shift to sound the alarm about judges who in the conversation is relatively new “improvise[] on the text to produce critics point out that no competent and reflects a growing movement to what they deem socially desirable judge would dispute or fail to apply provide effective procedural safeguards results – usually at the behest of an the basic tenets of textualism. The and legal assistance in adverse civil advocate for one party to a dispute.” text is sacrosanct. But the processes proceedings where basic human needs Most trial judges of all political of interpreting and applying the law, are at stake (Civil Gideon”). This persuasions, if asked, might espouse a and then issuing a ruling or an opinion, magazine recently highlighted (Winter different view of their decision-making sometimes require “gap-filling” and 2014) the emerging success of the processes. Any “improvising” is done therefore some form of law creation. Philadelphia Bar Association’s Civil in the course of finding a fair, efficient, Judge Richard Posner, who appears Gideon and Access to Justice Task and effective way to clear (or to stay in several uncomplimentary footnotes Force, launched five years ago. Projects one step ahead of) their often crushing in Justice Scalia’s most recent book, include the landlord-tenant Legal Help caseload and avoid reversal on appeal. explains: “Judges defending themselves Center in Municipal Court, exploration Socially desirable results and bowing from accusations of judicial activism of new representation initiatives in the to an advocate’s viewpoint are not part sometimes say they do not make law, Family Court Division, and the award

the philadelphia lawyer Summer 2014 41 of an American Bar Association grant of Philadelphia stay in their homes. syndicate of invidious black-cloaked that has paved the way for public There are many other examples of judges huddled in their respective hearings across Pennsylvania on the the judiciary using creative case- chambers, ignoring the law, and issuing dire need for legal help and possible management systems to solve or ruling after ruling, based on their solutions. mitigate persistent problems while personal views about public policy, A program in the First Judicial simultaneously expanding access to is a myth. Judges have a difficult job. District that predates these initiatives, justice. Such programs include but Their primary concern is getting the called the Residential Mortgage are not limited to “problem-solving rulings right, within the hierarchy and Foreclosure Diversion Program, has courts” in Pennsylvania and beyond, demands of judicial precedent and received national attention. Under the such as veterans courts, drug courts, elected legislative judgment. When rules adopted by the Philadelphia Court DUI courts, juvenile drug courts, girls a gap in the law occurs, they fill it to of Common Pleas, in 2008, and made court, and mental health courts. Only the best of their ability as objective, permanent in 2009, no owner-occupied the most cynical critic would label apolitical decision-makers – realizing residential property in Philadelphia these types of initiatives and programs that no court can insulate itself entirely may be foreclosed on and sold by the as pejorative examples of judicial from all the contacts of life. Perhaps, sheriff’s office before the occurrence activism. Yet, in order to be successful, during a quiet chat in the Supreme of a “conciliation conference” – a they require active and ongoing judicial Court’s library, fourth floor, 1 First face-to-face meeting between the leadership, collaboration among many St., Northeast, Washington, D.C. (far homeowner and the lender aimed at stakeholders, and education both within from the madding crowd of pundits, striking a workable compromise. Every the legal system and with the general politicians, and the rest of the legal homeowner facing a default is provided public. community), this, too, is something assistance from a housing counselor, A Tempest in a Teapot Justices Scalia and Ginsburg can agree and sometimes legal representation. on. This program, spearheaded by Judge The charge of judicial activism, Annette M. Rizzo and developed regardless of who uses the moniker, Mark Franek is an associate with by then-President Judge C. Darnell is largely a tempest in a teapot. If the Stevens and Lee and a former court Jones II, continues to help indigent, teapot could speak, it would whistle officer for a judge in the First Judicial or temporarily indigent, residents the truth: The notion that there is a District.

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42 the philadelphia lawyer Summer 2014