Wednesday, January 16, 2008

Judicial Activism

This article at Glenn Greenwald's yesterday got me thinking again about Judicial Activism, and also reminded me that it was something I wanted to talk about that I have not quite gotten around to yet.

Really, there's not too much to say about it beyond what Glenn says. It is a nonsense term, that is essentially defined as "any judicial decision that a right-wing conservative disagrees with." I have in the past defined it more generally as "any judicial decision that the user of the term disagrees with," but I think the more specific definition is probably the more correct one given the usual usage.

In any case, it is a legally meaningless term. I think I saw just how meaningless it was in a bulletin board discussion group I have been on for many years now where it is mostly just a handful of mostly right-wing cool-aid drinkers and me discussing various things political. Of course, it wasn't long before the "judicial activism" claim was put forth by the right-wingers, and in one particular case, they quoted to me a legal case they disagreed with and then asked me to opine, as a lawyer, was that an example of judicial activism (obviously thinking they cornered me into "admitting" this and agreeing with whatever point they were trying to make). I told them I would be happy to offer an opinion on that case (actually, it might have been several cases bundled together into a collective "outrage" bullet list as one often sees on and elsewhere) - I said I'd be happy to do that as soon as they gave me a definition of judicial activism, so I knew what criteria to use to evaluate the cases.

And thus began a very very very long series of back and forth messages where they kept claiming that I knew what the definition of judicial activism was and that my reluctance to offer an opinion was some sort of dodge - and I pointed out that if they wanted an answer, it was easy, they just had to post the definition. Needless to say, after many months of this, they never posted a definition, and I told them that I suspected they didn't have one beyond "this is an opinion I disagree with." But they still never gave up their claim that the word had meaning beyond that nor that the cases fit this mysterious definition of "judicial activism."

I suggest using the same tactic with anyone who gets all frothed at the mouth about a judicial opinion. Ask them for a definition of judicial activism, a definition you could use to neutrally evaluate whether a case is an example of it or not. I supsect you'll get crickets as your response.


Matthew said...

Here's a definition.

Judicial Activism: Any legal decision(s) whose primary justification is anything other than the true meaning of the law. "True meaning" is defined by the judge, but is distinct from cultural or moral considerations not relevant to the actual legislation.

DBB said...

That's not a very good match to its use, since those who complain about judicial activism often don't have a clue what the law actually says and only complain about the result.

What it does sound like is a judicial decision based on public policy rather than precedent or statute. And that is completely eliminated from Michigan jurisprudence because, while you can make public policy based decisions, they have to be based on clear precedent (which is in actual fact the law), so in essence, there are no more public policy justifications for legal rulings anymore.

Back to your definition - it obviously is not the one used by the right-wing because, for instance, in the Terry Shiavo case, the judge in Florida was called 'activist' and he was following long-established black letter law.

It is a term I see used pretty much exclusively by non-lawyers who know nothing about the law relevant to a particular case and often don't even know all of the relevant facts to a particular case, so really, it is just a complaint that the ruling did not come out how they wanted it to (or how their politico minister told them it was supposed to come out).

Matthew said...

I think that most people who use the term would agree on that definition - a decision based on policy or preference rather than statute or precedent. The reason people don't seem to be using it this way is that they rarely check what the law means or whether they know what it means before they accuse a judge of misapplying it.

DBB said...

See, most (really all that I've seen) people who use the term clearly don't use the definition you supplied - I've only ever seen it used where it is equivalent to 'I don't like the result'.

I've read literally hundreds or even thousands of court decisions and I can probably count on a single finger the number of times I've seen a judge make a decision that would fit under the defintion you supplied and that decision was promptly overturned on appeal.

Now, I've read dozens of articles complaining about 'judicial activism' and none of them actually fit the definition you supplied. That's why I don't really think that is the definition of judicial activism as it is used.

I don't think there really have been any 'activist' (your definition) decisions of any significance in decades. Perhaps there were some from the 1970s and earlier - but then now they are precedent, and so anyone who follows that precedent isn't being activist - since it is binding. Courts at many levels now are much much more conservative (particularly in my state) and those older cases are getting reversed and some pretty ridiculous precedents are getting set now, though again, I wouldn't call them activist, just stupid.