“Judicial Activism” Is a Meaningless Epithet

When the SJC led the way in Massachusetts by ruling that the prohibition of same-sex marriage was patently unconstitutional (equal protection under the law, after all, means that the government cannot single out certain types of individuals for prohibition from access to government contracts solely on the basis of the fact that they are a certain type of individual), conservatives cried that this was “judicial activism.” Those rogues in robes had overstepped their proper bounds, which conservatives evidently envisioned as being a judiciary that was constrained to serve as rubber-stampers for the will of the majority or the will of the legislature (to hell with the natural and constitutionally-guaranteed rights and privileges of individuals, which, after all, is only what the Framers conceived of as the rationale for an independent and co-equal judiciary to exist in the first place in order to protect). This is also true, in some way or another, to all similar instances since this time of courts striking down gay marriage bans. We probably saw it hit its shrillest with the striking down of Prop. 8 in California, when the courts overturned a ban that was enacted via ballot initiative by a clear majority of the people of California. Evidently, courts upholding equal protection (i.e., a Constitutionally guaranteed individual right that is within the purview of the judiciary to protect and enforce via ruling) is activist on the courts’ part. Got it.

When the D.C.Circuit issued its ruling on the case that would become King v. Burwell and stated, in essence, that when the letter of the law is clear, the courts have no authority to rewrite it via interpretive gymnastics in order to jive better with the contemporary will of politicians inconvenienced by their own lack of foresight, liberals cried that this was “judicial activism.” The argument, from various quarters, was essentially that judges have no business interpreting the law as written when doing so would imperil efforts by the President and agencies to make the law work, whether or not their efforts to make it work are legal according to the law itself. Never mind all the times the Court has stated that deference to the legislature requires the courts to adopt a pretty rigidly literalistic reading of duly-enacted statutes, even if the proviso(s) in dispute seems to ignore the clear intent of the law in general and creates “anomalies” and apparent contradictions with respect to the enactment and enforcement of the law. Evidently, an insistent and consistent deference to the enactments of the legislature is activist on the courts’ part. Got it.

So, if the courts strike down laws as being unconstitutional, they are activist. And if the courts defer to duly enacted laws and require their enforcement as written, they are activist. So in the act of striking down bad laws, and in the act of making the legislative and executive branches live with the bad laws they wanted and voted for, the courts are activist.

Could we just please retire this absolutely meaningless criticism? As Justice Kennedy has observed, “An activist court is a court that makes a decision you don’t like.” Courts are only activist to the side that loses, whether or not the court in question struck down a law, modified it, upheld it, or declared it did not have the authority to address the issue at all. Someone somewhere always thinks that the court has been activist – even with respect to the mundane question of statutory interpretation as to whether or not a fish was a “tangible object” under Sarbanes-Oxley. Will the courts have to disappear before they aren’t considered activist, or would even the self-abrogation of the third branch of our political system be construed in some way to be activist?


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