Conservative activism
By Dahlia Lithwick–yet another guest columnist who would be a vast improvement over a majority of the current crew on the Times op-ed page–has a good column about “judicial activism.” She summarizes the conventional wisdom as follows:
Together then: Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars.
She proposes that we call conservative activists “re-activists” in order to counter the cw. I like it, but I think it needs to be stated with greater forcefulness, as much as possible, that the claim that the conservatives on the Rehnquist Court are anything but activist is just transparently absurd. That in the wake of Bush v. Gore, Boy Scouts v. Dale, Seminole Tribe v. Florida, US v. Morrison, etc. etc. “activism” can be conflated with “liberal”–as if this was 1964 and Hugo Black was the median justice–is so utterly ridiculous it’s amazing this column needed to be written. A new term really isn’t necessary. Nor are the conservatives on the court in any way constrained by their alleged methods of interpretation. Clarence Thomas has never even tried to explain how the 14th Amendment, as construed during the time of the Reconstruction Congress, could prohibit race-conscious remedies, because this position is indefensible. Antonin Scalia has never explained how literal textualism can lead to reading the 11th Amendment’s prohibition on suing other state governments as prohibiting suing one’s own state government, because this position is indefensible.
The greater problem, I think, is that in its perjorative sense the term “activism” is just worthless question-begging. I don’t object to using “activist” in the empirical sense of whether courts are generally deferential to legislatures (by which standard the Rehnquist Court is, of course, among the most activist in history.) But as a way of criticizing opinions with which one disagrees, it basically has no value.