The Vacuity of the "Judicial Activism" Charge

One one level, I’m sympathetic to Ilya Somin’s response to Adam Cohen’s “gotcha” column about “judicial activism.” It’s true that most conservatives have never claimed that the Courts should never overturn laws or applications of laws by the executive branch, and in this sense individual cases of conservative courts doing so isn’t necessarily a deep contradiction with the values of conservative jurisprudence.

However, the problem is that once you — like Somin — divorce the concept of “judicial activism” from the frequency with which courts (for better or worse) strike down actions of the political branches the term becomes an empty tautology. The concept of “activism” ceases to do any real work; everything comes down to whether one considers decisions correct or not for reasons independent of “judicial activism” per se. And in this sense, Cohen’s column is fair; whatever the details when you look under the hood, to the lay public decrying “judicial activism” certainly implies that you want courts to be more deferential to the political branches. The fact that conservative courts aren’t, on balance, more deferential (they tend to be more deferential to state legislatures and less deferential to Congress) does not, in itself, mean that conservative jurisprudence is wrong — but it does make the pejorative use of the term “judicial activism” misleading and deprives the term of any value. It’s certainly fair to use the Roberts Court to illustrate that “judicial activism” means nothing more to most people using the label than “judgifying I don’t like.”