The myth of activist judges.

The myth of activist judges.   Activist judges? Where?

 By Kermit Roosevelt III

At a conference in Texas last month, retired Justice Sandra Day O’Connor raised eyebrows when she revealed that, in 2005, each justice had received by mail a package of home-baked cookies containing “enough poison to kill the entire membership of the court.”

O’Connor’s remarks came in the middle of what has turned out to be her national speaking tour in defense of judges. It’s an unusual step for a retired justice, but these are unusual times. “The breadth and intensity of rage currently being directed at the judiciary may be unmatched in American history,” O’Connor has said.

That assessment may be overstated – the mid-century resistance to decisions such as Brown v. Board of Education, which desegregated public schools, was probably greater – but it is not far off the mark. Fortunately, most current attacks on the judiciary rely on poison pens rather than poison cookies. But they may be just as dangerous to the health of our system of government, and we owe it to ourselves not to swallow them too easily.

The constant refrain of the critics is that the Supreme Court has been engaging in “judicial activism.” No one agrees on precisely what this term means, but its heart is the idea that judges are making decisions based on their policy preferences rather than the law. The charge is levied most frequently against decisions that strike down state or federal laws, but it is also heard when the court rejects presidential claims of authority, as it has in some recent cases related to the detention and trial of terrorism suspects.

Complaints about activism would make sense if the Constitution provided clear answers that judges were ignoring in favor of their policy preferences. But in controversial cases, the Constitution typically does not provide a clear answer. Frequently, it offers a general principle whose application to particular cases requires something much like a policy judgment. The equal-protection clause, for instance, is generally understood to prohibit unreasonable or unjustified discrimination, but it does not tell us what counts as an adequate justification.

So some constitutional provisions require something like policy judgments. This does not mean that judges should decide cases based on their political whims. Precisely because the relevant constitutional rule requires a policy determination, courts should usually defer to the representative branches of government. Congress and state legislatures are generally better at making those calls, and, in most cases, courts should step in to thwart the popular will only if the result of the democratic process is clearly unreasonable.

But not always. Sometimes there are reasons to think that the democratic process should not be trusted. Perhaps a law burdens a politically unpopular group, or one that has historically been the target of unjustified discrimination. Or perhaps the individual interest at stake is so important that courts should err on the side of protecting it. In such cases, courts are justified in not granting other governmental institutions their customary deference.

Many of the people who criticize particular decisions as activist have a fairly transparent political agenda. When they don’t like the result, a decision is activist; when they do, the call for deference disappears. But if judges are honest, they can never satisfy these critics. Honest judges can either try to identify the factors that justify more intrusive judicial review, or they can defer in all cases.

Blanket deference would be a terrible mistake. The separation of powers, one of the cornerstones of our system of government, requires the courts to check the other branches if they overstep their boundaries. Dividing authority among the three branches of the federal government, the Framers believed, was the best way to avoid oppression by any one of them.

In fact, the need for an independent judiciary is even greater now than it was in the Framers’ day. Their vision of separation of powers depends on institutional loyalty – the idea that government officials seek to protect the authority of the institutions they serve, so that senators and representatives will resist presidential incursions on the power of Congress. But the Framers did not foresee the modern party system, and, in the modern world, party loyalty often trumps institutional loyalty. When one party controls both Congress and the presidency, the competition the Framers expected between those two branches all but disappears. The courts alone remain as counterweight.

A court that blindly defers to the other branches fails its obligation to serve as a check and balance. If we reject blanket deference, what remains is the attempt to identify appropriate cases for judicial intervention. That is what judges are doing now, what they have done since the founding. If we look carefully at the cases critics call activist, we will find that most of these interventions are, in fact, justified. Judicial activism is largely a myth.


Kermit Roosevelt III ( is the author of “The Myth of Judicial Activism: Making Sense of Supreme Court Decisions.” He will discuss “The Myth of Judicial Activism” at 4:30 today at the University of Pennsylvania Law School, 3400 Chestnut St., where he is an assistant professor.


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