Stone: What Does Obama Mean By "Judicial Activism?"
Last week, President Obama offered some reflections on judicial activism. (See "Obama Says Liberal Courts May Have Overreached"). The President suggested that activist judges "ignore the democratic process" and "impose judicial solutions on problems instead of letting the process work itself through politically." He added that whereas liberal judges tended to engage in judicial activism in the 1960s and 1970s, today it is conservative judges who are most often "guilty" of judicial activism.
The President was quite right to point out that, in cases like Citizens United, which held unconstitutional a federal law regulating corporate campaign expenditures, conservative judges are just as activist today as liberal judges were in the past. This is an important observation. For several decades now, conservatives have attacked liberal judges for being activist, while characterizing conservative judges as exercising judicial restraint. As the President made clear, this is a false dichotomy that has seriously distorted public understanding.
It was less clear from the President's remarks, however, whether he meant to describe judicial activism as inherently illegitimate, or whether he meant to say that only some instances of judicial activism are improper. The difference is critical. To the extent he meant to suggest the former -- by saying, for example, that liberal judges were "guilty" of judicial activism in the past and that conservative judges are making "the same error" today -- I must respectfully disagree. Like judicial restraint, judicial activism is neither inherently good nor inherently bad. Rather, the degree of activism or restraint that is appropriate in any given case depends on the issue before the court.