What Is Judicial Activism?

By James D. Agresti
April 12, 2012

Speaking last week from the White House Rose Garden, President Obama made the following remarks about the pending Supreme Court decision on the Affordable Care Act:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law.

In this statement, Obama describes judicial activism as a court striking down a law. This may be Obama’s view of judicial activism, but it is not the typical view of “conservative commentators” to whom he ascribes it. The phrase “judicial activism,” as explained in a California Law Review paper, has “many distinct and even contradictory meanings.” Obama’s description accords with one of these meanings, but this is not the form of judicial activism generally criticized by conservatives.

Conservatives have repeatedly described judicial activism as judges elevating their personal views over the Constitution or the law. At its core, this is the mindset verbalized by U.S. Supreme Court Justice Thurgood Marshall, a liberal icon who mentored Obama’s newest Supreme Court appointee, Elena Kagen. When Marshall was asked to describe his judicial philosophy, he responded, “You do what you think is right and let the law catch up.”

In contrast, Supreme Court Justice Clarence Thomas articulated a directly opposing view of judicial philosophy in a speech to the American Enterprise Institute, a prominent conservative think tank:

If we are to be a nation of laws and not of men, judges must be impartial referees who defend constitutional principles from attempts by particular interests—or even the people as a whole—to overwhelm them.

This echoes the sentiments of James Madison, the primary author of the Bill of Rights, and the person known as the “Father of the Constitution” for his central role in its formation. Near the outset of the Constitutional Convention, Madison vowed that it was the duty of the convention to frame a system of government that would protect “the rights of the minority” from the “common interest or passion” of the majority. This principle is what distinguishes the United States from a pure democracy in which anything goes if the majority wants it.

Liberals also stake claim to this tenet but assert that judges should flexibly interpret the Constitution in the light of evolving circumstances. In the words of liberal Supreme Court Justice Stephen Breyer:

I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history and tradition—believing that those help you reach a more objective answer.

Contrastingly, conservatives support the view that the Constitution should be interpreted in the light of its original intent, and changes to this intent should be made only by amendment. In the words of conservative Supreme Court Justice Antonin Scalia:

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.

Given such highly divergent judicial philosophies, it is only natural that liberals and conservatives would have different views of what constitutes judicial activism. However, irrespective of how one defines the term, it is misleading to ascribe any one of these views to others who don’t hold it, which is precisely what the president did.