Redefining ‘judicial activism’

Joseph F. Petros III Former Executive Editor, Notre Dame Journal of Law, Ethics & Public Policy
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We all saw it coming. It was only a matter of time after Judge Robert Vinson declared Obamacare unconstitutional last week before cries of “judicial activism” began emanating from the left.

Liberals have been throwing around this term a lot lately. Though it originated on the right as a criticism of judges who deviate from the text of the Constitution, the left has recently seized upon it in an attempt to say, “See, we can play this game too.” We heard it following the Citizens United decision, when the Supreme Court invalidated part of the McCain-Feingold Campaign Reform Act, and we are hearing it now after Judge Vinson found the Patient Protection and Affordable Care Act’s individual mandate — and consequentially the whole Act — to be unconstitutional.

This predictable reaction from the left reveals two things. First, it shows that the disdain for judicial activism which began on the right has now taken hold in mainstream American thought. Judicial activism has ceased to be a viable philosophical concept in our modern political landscape, and thus liberals can no longer safely embrace it. The days of the 1960s and ‘70s when the federal courts were widely accepted as engines of political change are long past, thanks in large part to the emergence of such jurisprudential minds as Scalia, Thomas, Roberts, and Alito on the nation’s high court. But ordinary Americans are also more familiar now with the text of the Constitution than they have been in decades. The Tea Party is a prime example — when else in our country’s history has such a political movement been so rooted in respect for the Constitution? Americans value the text of this document, and they expect their judges to be faithful to it.

Second, the left’s reaction reveals that instead of continuing to embrace this now-taboo judicial philosophy, liberals have opted to change its meaning. In lieu of judicial activism’s traditional definition — deviation from the text of the Constitution — liberals have adapted it to connote merely the striking down by the judiciary of any legislative, executive, or lower-court decision. This contorted definition pays no attention to the soundness of judicial reasoning in any given case and is therefore broad enough to encompass any decision that finds a statute or rule to be unconstitutional. Because this definition is unmoored from any principled analysis of constitutional interpretation, liberals are able to claim that conservative judges practice judicial activism just as much — if not more — than liberal judges.

This is, in reality, a poor standard by which to evaluate the federal judiciary. One of the bedrock principles of our governmental system — as first exhibited in Marbury v. Madison — is that the courts must refuse to enforce policies or decisions that conflict with the Constitution. If it were truly activist for a court to invalidate a statute or rule that violates the Constitution, then the Constitution would cease to be the supreme law of the land — a clearly untenable result. Whenever the Constitution and a statute stand opposed, the Constitution must always take precedence. Judicial activism therefore cannot be so simplistic a concept as “striking down.” Instead, there must be recognizable standards to which judges are expected to adhere in making constitutional decisions.

So what are these standards? Fortunately for us, they are written down. The value of a written Constitution is that it provides concrete and discernable guidelines — not just open-ended philosophical concepts — by which we expect our government to operate. Though the text of the Constitution can sometimes be vague or ambiguous, we expect judges to constrain themselves to textual and historical analyses to discern the people’s will, not to inject their own will, in their constitutional decision making. It is for this reason that judgeships are professional, not political, offices.

Judge Vinson’s opinion simply acknowledges an indispensable characteristic of our Constitution: that it grants Congress only certain, limited powers. The judge could not find the power to mandate the purchase of health insurance among those powers, and neither can most reasonable Americans. This determination requires no feat of activism, but merely a textual and historical examination of the Constitution. Words mean things, and the power “to regulate commerce…among the several states” does not mean the power to tell Americans what they must buy.

The left has difficulty coming to terms with this textual reality. Perhaps it comes as no surprise then that their first response is to start playing with definitions.

Joseph Petros is a third-year law student at Notre Dame Law School and is Executive Editor of the Notre Dame Journal of Law, Ethics & Public Policy.