Mississippi College Law Review Volume 21 Issue 2 Vol. 21 Iss. 2 Article 8 2002 Judicial Activism: The Good, the Bad, and the Ugly Arthur D. Hellman Follow this and additional works at: https://dc.law.mc.edu/lawreview Part of the Law Commons Custom Citation 21 Miss. C. L. Rev. 253 (2001-2002) This Article is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact [email protected]. JUDICIAL ACTIVISM: THE GOOD, THE BAD, AND THE UGLY Arthur D. Hellman* No matter how judges are selected, sooner or later some unfortunate candidate will be labeled a "judicial activist." One has to wonder: Does the term have any identifiable core meaning? Or is it just an all-purpose term of opprobrium, reflecting whatever brand of judicial behavior the speaker regards as particularly pernicious? That is the question I will address at this Symposium. Implicit in the question are several important issues about the role of courts in our democratic society. I offer my comments somewhat tentatively, because I know that scholars whom I respect hold different views. At the least, I hope to clarify the various usages and provide a framework that will permit debate about the underlying issues to take place in a more coherent way. I The conventional way of presenting a thesis of this kind would be to take you through the various meanings endorsed by others and to explain why each of them is hopelessly flawed. At the end, triumphantly, I would offer my own per- fectly crafted and calibrated definition. In this instance, however, I think it will be more useful to put my cards on the table at the outset. I take my definition from Judge Richard Posner, whose book on the federal courts has a lengthy chapter on "federal judicial self-restraint," which he contrasts with "judicial activism."1 Judge Posner describes activist deci- sions as those that expand judicial power over other branches of the national gov- ernment or over state governments.2 I would speak a bit more broadly and say that judicial activism is judicial review with an outcome adverse to the result reached through the political process.3 Several aspects of this definition deserve emphasis. First, although Judge Posner was examining the work of the federal courts (and particularly the United States Supreme Court), activism and restraint are also issues for state judicial systems. In fact, in recent years some of the boldest ventures in judicial activism have come in the decisions of state judges. Many of the examples are familiar: * Professor of Law and Distinguished Faculty Scholar, University of Pittsburgh School of Law. This article is based on remarks delivered at the Symposium on Judicial Selection at the Mississippi College School of Law on November 8, 2001. I am grateful to the Mississippi College School of Law for the opportunity to participate in this program. The article retains the conversational style of the lecture, adding only a minimum of footnoting. The author thanks Professor James Weinstein for helpful comments on an earlier draft - while absolving him of any responsibility for what remains. 1. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 314 (1996). 2. More accurately, Judge Posner describes "judicial self-restraint" as "the judge's trying to limit his court's power over other government institutions." POSNER, supra note 1, at 318. As I have indicated, "activism" and "self-restraint" are correlatives. 3. The political process includes not only acts of the legislature and the executive but also direct action by the electorate, such as state constitutional amendments and popular initiatives. MISSISSIPPI COLLEGE LAW REVIEW [VOL. 21:253 State courts in California, Tennessee, Texas, and more than a dozen other states have struck down the state's system of financing education as violat- ing state constitution equal protection clauses or other provisions of the 4 state constitution. * Tort reform legislation in Ohio, Illinois, Oregon, and other states has been held unconstitutional by state courts.' * The Vermont Supreme Court notoriously held that the state was "constitu- tionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law."6 * The Florida Supreme Court invalidated an amendment to the state constitu- tion that was designed to preserve the death penalty7 - an amendment that was approved by more than 70% of the voters. So activism, in the sense endorsed by Judge Posner, is a feature of state as well as federal judicial systems. A second point about activism, as Judge Posner defines it, is that the definition is indifferent to whether the decisions are liberal or conservative in outome. We hear so much talk about "liberal activist judges" that we might conclude that activist decisions always promote outcomes on the liberal side of the political spectrum. That was generally true of Supreme Court in the 1960s under Earl Warren and it was also true, to a surprising degree, of the Court in the 1970s and early 1980s under Warren Burger.' Today, under Chief Justice Rehnquist, we have another activist Court, but most of its activism is on the conservative side. Mention of the Rehnquist Court brings up a third point, and also a possible flaw, in Judge Posner's definition. Many of the most controversial decisions of the current Court have struck down Acts of Congress on the ground that they intruded on powers reserved to the states. These are certainly activist decisions if viewed from the perspective of the national government, but they may also have the effect of limiting judicial power over state governments.' However, the para- dox is more apparent than real. The decisions do expand judicial authority over the allocation of power among governmental units, and they reverse the outcome of the political process. I have no doubt that Judge Posner would classify them as activist, and I do also.' ° 4. See Erin E. Buzuvis, Note, 'A "for Effort: Evaluating Recent State Education Reform in Response to JudicialDemands for Equity andAdequacy, 86 CORNELL L. REV. 644,646 n.6 (2001). 5. See Mark Thompson, Letting the Air Out of Tort Reform, ABA J., May, 1997, at 64. 6. Baker v. State, 744 A.2d 864 (Vt. 1999). 7. Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000). 8. For example, it was the Burger Court that established a woman's constitutional right to an abortion, Roe v. Wade, 410 U.S. 113 (1973); limited the circumstances under which the death penalty could be imposed, Furman v. Georgia, 408 U.S. 238 (1972); and allowed prisoners to sue for medical malpractice that manifests "deliberate indifference to serious medical needs," Estelle v. Gamble, 429 U.S. 97, 106 (1976). 9. Thus, when the Court held that Congress could not abrogate state sovereign immunity under the Age Discrimination in Employment Act, it severely curtailed the extent to which federal courts would be second-guess- ing state agency employment decisions. 10. In the 1960s, Richard Nixon used the term "strict construction" as a synonym for what Judge Posner would call "judicial self-restraint." See JAMEs F SIMON, IN His OwN IMAGE: THE SUPREME COuRT IN RICHARD NtxoN's AMERICA 8-9 (1973). This was somewhat ironic, because the phrase originated as a way of describing judges who "strictly" (i.e. narrowly) construed the powers of the national government. See, e.g., Newberry v. United States, 256 U.S. 232, 281 (1921) (Pitney, J., concurring in judgment but rejecting Court's holding of unconstitutionality) (noting "deplorable result of strict construction"). Strict construction thus often translated into judicial activism, for a narrow reading of national powers would readily result in holding an Act of Congress unconstitutional. See Archibald Cox, The Role of the Supreme Court: Judicial Activism or Self-Restraint, 47 MD. L. REv. 125-26 (1987). For further discussion, see infra PartV. 2002] JUDICIAL ACTIVISM. THE GOOD, THE BAD, AND THE UGLY 255 II Let us look now at some of the other ways in which the term "activism" has been used. It would be tedious to go through all of the permutations, so I will confine myself to four. The first is exemplified by a comment made by a member of Congress at a House hearing a few years ago. Here's what the Congressman said: [T]he ultimate act of judicial activism is standing in a courtroom and having a judge look down at you and call you .'nigger" and tell you that your client's opinions in a case don't mean anything because your client happens to be black, or tell the bailiff not to call you and tell you that your case is coming up for trial and start the trial without you being there, simply because you represent an interest that the judge is out of step with. That is the ultimate act of judicial activism-acts which I have seen in my practice of law.11 We can all agree that the behavior described by the Congressman is appalling. But if we attach the label "activism" to that conduct, we drain the term of all mean- ing. We can sympathize with the Congressman's anger, but we should not allow it to distort our thinking. In the same vein, but less extreme, is a comment a few years ago in the New York Review of Books. The author referred to a judge "whose decision made begging (a practice as old as recorded history) definitively illegal in the subways." He then added: "Talk about judicial activism" 2 The first point about this comment is that the author criticizes thejudge for mak- ing begging "definitively illegal in the subways." Of course it was the city's legisla- tive body that made begging illegal; what the judge did was to allow the political process to work its will.