Activism, deference, and self-promotion

[Kermit Roosevelt]

I've followed the conversation about activism with interest.  Some
thoughts, and some self-promotion.

 

The conventional meaning of "activism" in political rhetoric is
basically "deciding cases based on personal policy preferences rather
than law."  I have some sympathy for the attempt to redefine the term a
la Ringhand and Gewirtz, but in the end I don't think this will be
helpful.  Activism is supposed to be bad, and a redefinition that loses
that element is not giving us a more precise or useful definition; it's
offering an entirely different concept.

 

This is not to say that the term "activism" is useful either.  If you
look at its uses in political rhetoric, you'll see it's generally just
an embellishment on the assertion that the speaker disagrees with a
decision-an unsubstantiated claim that the decision is not only wrong
but somehow improper.  Indeed, it's worse than useless.  It's harmful
because unfounded and overbroad assertions that judges are behaving
politically tend to corrode respect for the judiciary and, ultimately,
the idea that law is more than politics.  (That is, because the charge
of activism in practice is usually motivated by political preferences,
its dominance in discussions of the judiciary leads people to think
about judicial decisions in terms of those preferences.)

 

In The Myth of Judicial Activism, a book just published by Yale
University Press, I argue against the term and try to offer a more
useful replacement.  I suggest that we can achieve most of what the term
"activism" purports to do-that is, identify judicial decisions that are
improper exercises of judicial power-by asking whether the Court has
employed an appropriate level of deference to the government actor whose
performance it is reviewing.  Decisions that use an appropriate level I
call legitimate; those that don't I call illegitimate.

 

My hope is that instead of charges of activism (which are intelligible
to the public but worse than useless in terms of reasoned debate over
Supreme Court decisions) or painstaking analysis of doctrine (which is
useful but unintelligible to the public) we can discuss whether the
level of deference is appropriate.  This requires a theory about which
factors make deference appropriate and which make it inappropriate.  I
try to sketch such a theory in the book, which builds on an account
developed in my article Constitutional Calcification, 92 Va. L. Rev.
1649 (2005).  (That article itself builds on work by others, notably
Richard Fallon and including Mitch Berman's excellent Constitutional
Decision Rules, 90 Va. L. Rev. 1 (2004), which I heartily recommend to
anyone who has not yet read it.)  The relevant factors and their
relative significance are certainly debatable, but I think the debate is
more likely than most in con law to be productive.  (For instance, it
could at least promote consistency by making plain whether one
approaches the question of deference the same way in different
contexts.)

 

In terms of evaluating decisions, the deference-based approach produces
a two-by-two grid: the Court can defer or not defer, and deference is
appropriate or inappropriate.  If we're interested in labels, I think we
might fairly call a refusal to defer when deference is warranted
activism, though this still doesn't match up precisely with ordinary
usage.  Appropriate deference I would call restraint; an appropriate
lack of deference might be independence.  Excessive deference might be
abdication.  

 

We can also assign labels to famous cases about which consensus exists,
and that exercise might help identify factors and suggest their relative
importance.  According to conventional wisdom, I would say, Lochner is
activism; Brown is independence; Plessy is abdication; Carolene Products
is restraint.  And based on the data we derive from these cases, or from
more general a priori theorizing, we can then try to figure out where to
put cases like Lawrence, Roe, Kelo, Hamdi, and Roper.  I think that this
sort of analysis might actually be useful to the general public.  As I
perform it in the book, it suggests that the Court's decisions are very
seldom activist or otherwise illegitimate, but of course that conclusion
is open to debate.

 

 

-- 
Kermit Roosevelt
Assistant Professor
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia PA 19104
215.746.8775

 

 

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