I Know What Judicial Activism Is

. . . because Matt Franck schooled me on it years ago, in a 2006 NRO piece :

Activism, I think, can be pretty neutrally defined as the wrongful use of the power we call judicial review. (Not its wrongful non-use, though . . . )

I don’t agree with Franck down the line on con-law (although it’s always a safe bet follow the lead of his and the other bloggers’ work on NRO’s excellent Bench Memos) but it seems to me he just got this one precisely right. And ever since I read him on this, I try to warn my students, fellow conservatives, and anyone else who will listen, that “judicial activism” is a problematic term to be avoided when possible. That’s the real take-away from what Franck teaches.  Because wrongful non-use can become a HUGE issue.

To me, knowing that a judge is a “living constitutionalist” says a whole lot more than knowing she’s “activist.”

What I say to my students is, look, if a Congress passes a bunch of unconstitutional laws, and if the basic rubric of judicial activism (the only one Dems and Repubs can agree on) is a higher incidence of using the power of judicial review to overturn laws, then you very much want the Supreme Court to be “activist.” Yes, there is the pure Franckian definition of activism, and we all know that lots of less-academic conservatives use the term that way with complete sincerity , but since we (Americans) cannot get agreement upon what the “wrongful use” of judicial review is, we have to frame the debate primarily in terms of “originalism v. living constitutionalism” and secondarily in terms of “legislative deference v. constitutional rigor,” it is a term more confusing than it is helpful.

Legislative deference(this is NOT the legislative supremacy of Justice Gibson in Eakin v. Raub or of Jefferon on his crankier days), which my top con-law guide Christopher Wolfe connects to “moderate judicial review,” simply means that the judges in question adopt a “tie goes to the runnner,” i.e., a “lack of obvious unconstitutionality case goes to the relevant elective branch” approach.  And yet, the question of unconstitutionality in our day 9 times out of 10 goes back, as Wolfe knows and admits, to the living constitutionalism v. originalism debate.

To suggest an extreme (but PURE) anti-activist position, an originalist super-strict about “obvious unconstitutionality,” for example, might have hesitated to have joined the Heller majority.  Or so Richard Posner once argued.

So I guess what I really know about judicial activism is, “DON’T USE THAT TERM!”