Following Judge Vinson’s declaration that Obamacare is in fact unconstitutional, many on the left have responded by seizing an old conservative lament – judicial activism. The right has unnecessarily handed the left a minor rhetorical foothold by using the term in an ambiguous way in the past, albeit to criticize decisions fully deserving of such. Because of these past conservative attacks on judicial activism, attacks which were deserved but ill-defined, Obamacare’s defenders have managed to stumble onto some semblance of a point, though not the one they think. Judicial activism, properly understood, can be either good or bad, proper or improper.
It is necessary to start this discussion with some definitions. Specifically, just what is judicial activism? The worst partisans simply use the term to mean any decision they do not like. Some conservatives and liberals alike have used the term this way, and I suspect many Obamacare supporters are now using it thusly. Using judicial activism in this manner accomplishes nothing, as all sides simply talk past one another.
Another definition, one many on the right have historically embraced, holds that judicial activism occurs when judges reach beyond their institutional authority and write legislation, instead of judging it. Under this paradigm, activist judges are seen as supplanting the legislative will with their own policy preferences. This practice is certainly both that of an activist nature and deserving of condemnation, but is it wrong because the judge acted, or because he did so wrongly? It seems to me the real objection ought to be that such decisions stray from the Constitution. There are proper times to overrule legislative action, after all, and which leads me to the third definition.
The third definition is the one now being used by the left to criticize the decision overturning Obamacare, and simply holds that activism is the reversal of legislative acts. This definition is reasonably intuitive – the judiciary is “activist” when it acts – and conservatives have been willing to use it this way as well. For instance, it is this understanding of judicial activism that has lead some conservatives to counsel judicial deference in the face of legislative acts – that courts should only overturn the most egregious legislative overreaches. Hopefully, these conservatives are beginning to see the fault of this approach. The judiciary should be neither principally deferential nor confrontational; it should be Constitutional. Conservatives need to be more careful in their use of such phrases and better isolate the exact fault of particular judicial actions.
To understand this important distinction, let’s consider two landmark Supreme Court cases.
In Kelo v. New London, the Supreme Court upheld the taking of property from one private party so that it be given to another, simply because the new owner might pay more in taxes. In this outrageous case, the Court deferred to the local governments even as they blatantly violated the property and due process rights of their citizens, and strayed well beyond the Constitutional requirement that takings be allowed only for public use. What was needed was a court willing to take an active role in defending liberty by overturning government infringements.
In Brown v. Board of Education, the court overturned state government mandated segregation in schools. By the third definition, the decision could not have been more activist. It overturned the laws of numerous states and existing court precedent, yet this 9-0 decision is loved by both liberals and conservatives alike.
The point I’m making is that many conservatives have erred in the past by too broadly applying a particular understanding of judicial activism, resulting in a counter promotion of a form of judicial passivism that itself leads to many bad decisions, or prevents good ones. Critics of bad judicial decisions cannot rest on lazy red-meat sound-bytes by simply referring to those decisions as activist, when the phrase itself can be heard many different ways. We need to be clear that the purpose of the judiciary is to uphold the Constitution. If that requires activism, so be it. When the other branches of government exceed their constitutional authority, the courts not only have the prerogative to actively defend liberty and declare such acts unconstitutional, but the duty. A passive court, even if unable to do harm on its own, is one that is useless in the defense of liberty. It is a distraction to even have to discuss whether Judge Vinson’s decision is activist, but it’s a distraction largely of conservative making. Judge Vinson’s decisions is proper not because it is or is not activist, but because it restores a tiny semblance of the restrictions placed on the authority of Congress in the Constitution.
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