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Outlaws, Pirates, Judges: Judicial Activism As an Expression of Antiauthoritarianism in Anglo-American Culture ANTIAUTHORITARIANISM in ANGLOAMERICAN CULTURE

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Outlaws, Pirates, Judges: Judicial Activism As an Expression of Antiauthoritarianism in Anglo-American Culture ANTIAUTHORITARIANISM in ANGLOAMERICAN CULTURE University of Kentucky UKnowledge Law Faculty Scholarly Articles Law Faculty Publications 2020 Outlaws, Pirates, Judges: Judicial Activism as an Expression of Antiauthoritarianism in Anglo-American Culture ANTIAUTHORITARIANISM IN ANGLOAMERICAN CULTURE Beau Steenken University of Kentucky, [email protected] Follow this and additional works at: https://uknowledge.uky.edu/law_facpub Part of the Judges Commons, Jurisprudence Commons, and the Law and Society Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Repository Citation Steenken, Beau, "Outlaws, Pirates, Judges: Judicial Activism as an Expression of Antiauthoritarianism in Anglo-American Culture ANTIAUTHORITARIANISM IN ANGLOAMERICAN CULTURE" (2020). Law Faculty Scholarly Articles. 644. https://uknowledge.uky.edu/law_facpub/644 This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact [email protected]. Outlaws, Pirates, Judges: Judicial Activism as an Expression of Antiauthoritarianism in Anglo-American Culture ANTIAUTHORITARIANISM IN ANGLOAMERICAN CULTURE This article is available at UKnowledge: https://uknowledge.uky.edu/law_facpub/644 OUTLAWS, PIRATES, JUDGES: JUDICIAL ACTIVISIM AS AN EXPRESSION OF ANTIAUTHORITARIANISM IN ANGLO- AMERICAN CULTURE Beau Steenken * I. IN TRODU CTION ............................................................................. 260 II. ON JUDICIAL A CTIVISM ................................................................ 268 A. Ever-presentActivism ......................................................... 270 B. Judging the Judges: Normative Treatment ofJudicial A ctivism .............................................................................. 274 1. Negative Views of Judicial Activism...........................274 2. A ctivism Apologists.....................................................276 3. The Middle Ground: Mixed Bags and Bedrudging Realists .............................. 279 C. Converging on Consensus: Defining JudicialActivism ..... 281 III. LAW AS CULTURE.........................................................................284 IV. OUTLAWS, PIRATES, AND THE GLORIFICATION OF ANTIAUTHORITARIANISM IN ANGLO-AMERICAN CULTURE ..... 291 A. Outlaws and Pirates in Early English Literature...............291 B. Outlaws and Pirates in Early American Literature............299 C. Mass Media and the Proliferationof Outlaws andPirates in Modern Popular Culture .................................................... 303 V. ANTIAUTHORITARIAN JUDGES: JUDICIAL ACTIVISM AS A REFLECTION OF IDEAL NORMS OF LIBERTY, EQUALITY, AND SOCIAL JU STICE ............................................................................ 310 A. The Usual Suspects: Sample Casesfrom Courts Commonly Identified as A ctivist ........................................................... 311 Instructional Services Librarian & Associate Professor of Legal Research, University of Kentucky. Thanks to Christopher G. Bradley for persistent encouragement; James M. Donovan for general advice; Cortney E. Lollar and Melissa N. Henke for helpful suggestions; and especially to Tina M. Brooks, Patty Alvayay, and Nicole Reynolds for covering the library during my sabbatical/writing. 259 260 QUINNIPIAC LAW REVIEW [Vol. 38:259 B. The 2017-2018 Supreme Court Term's Active Rejection of A uthorities.......................................................................... 316 C. JudicialActivism Beyond the Supreme Court of the United S ta tes .................................................................................. 3 19 D. The Problem Cases: UnjustifiedActivism and Unjustified R estraint.............................................................................322 V I. C ON CLU SION ................................................................................ 324 I. INTRODUCTION The election of Donald J. Trump as President of the United States in November of 2016 generally surprised most observers. According to reports, his victory surprised even the candidate himself.2 While the flawed polling data caused some of the widespread surprise, much of the consternation concerned the unconventional nature of the candidate and his campaign. Not only did many of Trump's policy positions conflict with the traditional positions of his party,' but his authoritarian style I See, e.g., Matt Flegenheimer & Michael Barbaro, DonaldTrump is Elected President in Stunning Repudiation of the Establishment, N.Y. TIMES (Nov. 9, 2016), https://www.nytimes.com/2016/11/09/us/politics/hillary-clinton-donald-trump-president.html; Shane Goldmacher & Ben Schreckinger, Trump Pulls off Biggest Upset in U.S. History, POLITICO (Nov. 9, 2016, 3:58 AM), https://www.politico.com/story/2016/11/election-results- 2016-clinton-trump-231070; David A. Graham, Donald Trump's Stunning Upset, THE ATLANTIC (Nov. 9, 2016), https://www.theatlantic.com/politics/archive/2016/11/donald- trump-elected-president/507062/; Jim Norman, Trump Victory Surprises Americans; Four in 10 Afraid, GALLUP (Nov. 11, 2016), https://news.gallup.comL/poll/197375/trump-victory- surprises-americans-four-afraid.aspx. 2 See Kelly O'Donnell, Uncertain Trump Team Prepared 2 Speeches on Election Night: Sources, NBC NEWS (Nov. 9, 2016, 1:52 PM), https://www.nbcnews.com/storyline/2016-election-day/uncertain-trump-team-prepared-2- speeches-election-night-sources-n681511; Shannon Vavra, Report: Trump Didn't Have a Victory Speech Prepared on Election Night, AXioS (July 17, 2017), https://www.axios.com/report-trump-didnt-have-a-victory-speech-prepared-on-election-night- 1513304256-OdalaOa2-9083-4fad-bb3f-c3e7929b2054.html. 3 See Carl Bialik & Harry Enten, The Polls Missed Trump. We Asked Pollsters Why., FIVETHIRTYEIGHT (Nov. 9, 2016, 4:53 PM), https://fivethirtyeight.com/features/the-polls- missed-trump-we-asked-pollsters-why/; Kenneth P. Vogel & Alex Isenstadt, How Did Everyone Get it so Wrong?, POLITICO (Nov. 9, 2016, 12:15 AM), https://www.politico.com/story/2016/11/how-did-everyone-get-2016-wrong-presidential- election-231036. 4 See Noah Bierman, Here are the Places Where Donald Trump and the Republican Party Disagree,L.A. TIMES (July 20, 2016), https://www.latimes.com/politics/la-na-pol-trump- gop-positions-20160720-snap-htmlstory.html (noting that some areas of disagreement between President Trump and the GOP include trade, immigration, social security, foreign policy, and the size of government); Philip Bump, Donald Trump is not a Traditional Republican- 2020] OUTLAWS, PIRATES, JUDGES 261 differed sharply from previously conceived standards of presidential behavior.' In addition to contributing to the shocking nature of his electoral victory, Trump's authoritarian style and worldview may indeed have contributed to the victory itself, as he appears to have been able to tap into a strong authoritarian current beneath the surface of American society. As early as the primaries, commentators asserted that Trump's authoritarian worldview was a primary motivator for his supporters. 6 As Trump proceeded to win the Republican nomination and the presidency, it became clear that rather than causing a dramatic shift into authoritarianism, Trump recognized the pre-existence of a strong authoritarian theme in American culture and knew how to harness it.' Regardless of the extent that Trump's candidacy benefited from a latent strain of authoritarianism in American culture, Trump's presidency subsequently sparked a resurgence of antiauthoritarianism. Both President Trump's authoritarian approach to his office and the antiauthoritarian Including on Some Big Issues, WASH. POST (Aug. 30, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/08/30/where-donald-trump-differs- with-republican-party-orthodoxy/?noredirect-on&utmterm=.e2fc0164c828 (discussing differences between President Trump and the GOP, including his view on single-payer health care, immigration, and taxes); Greg Krieg et al., Trump vs. the GOP on the Issues, CNN (June 9, 2016), https://www.cnn.com/interactive/2016/06/politics/trump-vs-gop-platform-issues/. I See Steve Denning, Trump and AuthoritarianPropaganda, FORBES (Nov. 6, 2016, 8:52 AM), https://www.forbes.com/sites/stevedenning/2016/11/06/trump-and-authoritarian- propaganda/#16c89693e0a; see also Brett Edkins, Donald Trump's Authoritarian Speech Confounds the Media, FORBES (July 22, 2016, 12:16 PM), https://www.forbes.com/sites/brettedkins/2016/07/22/media-confounded-by-donald-trumps- authoritarian-speech/#7670964b67dd. 6 Matthew MacWilliams, The One Weird Trait that Predicts Whether You're a Trump Supporter, POLITICO (Jan. 17, 2016), https://www.politico.com/magazine/story/2016/01/donald-trump-2016-authoritarian-213533 ("Trump's electoral strength-and his staying power-have been buoyed, above all, by Americans with authoritarian inclinations. And because of the prevalence of authoritarians in the American electorate, among Democrats as well as Republicans, it's very possible that Trump's fan base will continue to grow."); Amanda Taub, The Rise of American Authoritarianism, Vox (Mar. 1, 2016, 9:00 AM), https://www.vox.com/2016/3/1/11127424/trump-authoritarianism("Muchofthepolarization dividing American politics was fueled not just by gerrymandering or money in politics or the other oft-cited variables, but by an unnoticed but surprisingly large electoral group- authoritarians."). See
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