Originalism, Moral Skepticism, a the Ubiquity of the Normative

Tue Sep 5 04:19:31 PDT 2006

I believe that I restarted this threat with a post that mistook the meaning
of "restraint"--thinking that it referred to a disposition to
follow existing law rather than a disposition to defer to action by another
branch (or by the legislature) irrespective of whether such deference did or
did not accord with the law.  I might have made the same mistake with
judicial activism--reading "activist" for a disposition to change the law
rather than a disposition to defer even when deference requires new law.

My mistake was an honest one--and I think a "natural" one, given the context
and my beliefs about general normative jurisprudences.  As the discussion on
this thread indicates, the phrases "judicial activism" and "judicial
restraint" are ambiguous and vague--they can refer to different notions and
even if we settle on a meaning, there will be borderline problems.

We might react to this situation in a variety of ways.  We might give up on
the activism/restraint terminology and substitute a clumsier and less
resonant but less ambiguous locution.  It seems to me that this is
unlikely--activism and restraint are too embedded in the discourse.

We might try to "settle" the meaning through scholarly debate.  I doubt this
can work--these terms are "contested" as the thread shows.  And even if we
did agree as scholars, mistakes like mine would be likely to recur.

So it seems to me that the best we can hope for is an attempt in scholarly
discourse to consistently use clarifying language.

On 9/4/06, Bob Sheridan <bobsheridan at earthlink.net> wrote:
>
> On the scale of "activist" vs. "restraint," do the justices, or the
> Court, receive points for the times that they decline to wield the power
> as against the times they push the envelope of judicial authority?
>
> And when they do push the envelope, or decline, and the country decides
> not to rise up in rebellion, but instead to live with the decision and
> its implications, or work around them to the extent possible, as
> typically happens, what do we have then?  We then have the existing
> situation and the typical unhappiness among either liberals or
> conservatives at how bad this system is.  But no useful suggestion as to
> how to change it, as far as I can see.
>
> Perhaps the ultimate restraint on the power of judicial review as
> exercised by the Court is the political judgment of the majority that
> the nation will not rise up in rebellion as a result of this decision.
> It seems that Chief Justice Taney got it wrong, but Chief Justice Warren
> got it right.
>
> Bob S.
> sfls
>
> J. Noble wrote:
> > At 2:39 PM -0400 9/4/06, RJLipkin at aol.com wrote:
> >>           Our linguistic intuitions differ.  When a justice upholds a
> >> law that is clearly unconstitutional, he or she is deciding
> >> erroneously. Right?  But is he or she is doing more than that? My
> >> answer is yes. In upholding an unconstitutional law--or a law that
> >> the judge erroneously thinks is constitutional--a justice must
> >> recognize that his or her decision licenses Congress or the states to
> >> pass such laws.  Permitting or licensing conduct is action just the
> >> same. It seems clear, at least to me, that striking down or upholding
> >> laws are both judicial decisions that count as action. And when such
> >> action--not "inaction" but action--occurs the Court is deciding yes.
> >> When it strikes down a law it is saying no. If saying yes is an
> >> action and a judge does so inaccurately, I think, it appropriate to
> >> call it "activist." I think this is more than a semantic quibble.
> >> Wrongly licensing conduct is a decision just as prohibiting conduct
> >> is.   Indeed, we would not call a judge an "activist judge" if he or
> >> she always got the constitutional decision right.  If that's so, it's
> >> difficult to understand why deciding to uphold a law cannot qualify
> >> as activism.
> >
> > This conception of judicial activism deprives it of whatever analytic
> > usefulness it might have. (Perhaps that's your point.) Judges take
> > judicial "action" when they rule on a motion for leave to amend a
> > complaint -- whether by grant or denial. Inaction is not an option. So
> > too on a complaint for declaratory judgment that a law is
> > unconstitutional. There's no such thing as judicial inaction. The
> > divide is not between action and inaction, but between activism and
> > restraint.
> >
> > Activism and restraint are tested at the boundaries of judicial
> > authority and competence. The grant or denial of a motion for leave to
> > amend, or the issuance or denial of a warrant upon finding or failing
> > to find probable cause, whether the decision is right or wrong, clean
> > or corrupt, logical or inane, is not judicial activism because it is
> > plainly within the bounds of judicial authority.
> >
> > Judicial activism usefully refers to judicial acts that strain the
> > bounds of judicial authority. The obvious example is the discovery of
> > substantive due process rights. Another example is the invocation of
> > the dormant commerce clause to strike down a state law upon a
> > "finding" of "substantial effects."
> >
> > Striking down a law as a violation of the First Amendment isn't
> > activism insofar as the decision is premised on the constitutional
> > injunction -- "Congress shall make no law...." But you can see
> > judicial activism in the decision that creates an exception that
> > allows courts to /uphold/ such a law if it is "narrowly tailored" to a
> > "compelling government interest." And then you can find still more
> > obvious judicial activism in decisions that turn on a ruling that the
> > government's interest is not compelling, or that the regulation is not
> > narrowly tailored. Activism begets activism until, as Frank points
> > out, slinging the charge amounts to "little more than ideological
> > protestations" -- in your words, "a pejorative."
> >
> > If you conceive of judicial activism such that it's opposite is
> > restraint, rather than inaction, then a decision which upholds an
> > unconstitutional law is neither judicial activism nor judicial
> > restraint -- it's just judicial error, e.g. Korematsu, which might be
> > characterized as misguided, mischievous, oblivious, or gutless, but is
> > not a fair example of either judicial activism or judicial restraint.
> > In this conception, you can characterize Lopez along with Lawrence as
> > examples of judicial activism, even if you think one is correctly
> > decided and the other misguided. At the same time, Raich and Kelo are
> > both examples of judicial restraint, even if you believe that the
> > Court failed its duty by licensing unconstitutional regulation.
> >
> > John Noble
> >
> >
> >>
> >> Bobby
> >>
> >> Robert Justin Lipkin
> >> Professor of Law
> >> Widener University School of Law
> >> Delaware
> >>
> >> _______________________________________________
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>
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>

-- 
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL  61820-6909
217.244.3960
lsolum at gmail.com
http://lsolum.typepad.com/legaltheory/ (blog)
http://home.law.uiuc.edu/~lsolum/ (homepage at the University of Illinois)
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