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Enough with the [Phrase] Activist Judges!

John McCain promises in an article at law.com today that if elected, he would avoid "activist judges" like the social plague everyone agrees they are.

But do we agree?  What the hell is an "activist judge," anyway?  The phrase is like "alibi," "Sunni Islam," or "fiscal conservative" -- everybody uses it, but who can say what it means?

The distinction between "activist judges" and the three phrases just listed, however, is that "activist judges" probably never had a precise meaning.   If you are conservative, the phrase means the likes of Justice William O. Douglas, and perhaps Chief Justices Earl Warren and John Marshall. If you are liberal, you feel sort of uncertain and defensive because you don't pay attention to Bill O'Riley anyway.  And if you are intellectually honest, the list of names above leaves you feeling confused.

As far as I can tell judges and Justices transmogrify into activists when:

• They strike down socially popular legislation on constitutional grounds (e.g., eliminating the death penalty for child rape in Kennedy v. Louisiana, or affirming citizen enemy combatants' habeas rights),
  
• They ignore or overturn precedent (e.g., reversing without distinguishing Betts v. Brady, in Gideon, or striking down Plessy v. Ferguson's separate but equal theory in Brown), or
  
• They depart from common and accepted constitutional constructions (e.g., the recent gay marriage decisions in California and Connecticut, the New Deal Court's treatment of the Commerce Clause, Griswold's sudden discovery of privacy in the Bill of Rights, which had somehow been overlooked for more than 150 years, or many Scalia and Thomas dissents).

Into the first camp falls Justice Kennedy (Kennedy v. Louisiana), into the second go Justices Harlan, and Douglas (Gideon), and into the third fall Justices Scalia, Douglas (Griswold) and Thomas.

But can this really be the kind of analysis upon which lamenters like McCain of activist judges base their conclusions? Is that what Mark Levin means? Rush Limbaugh? Would they agree that all of above-listed Justices have been working together in scurrilous concert to dismantle our system of government?  Scalia and Douglas??

No.  The truth is that the only common ground those Justices share is an address. The truth is that "activist judges" is nothing more than a pejorative, politically poisoned rephrasing of "broad judicial review." It's what Chief Justice Marshall created in Marbury. It is what the New Deal Court did after the Depression. And it is nothing short of ironic that broad (or at least sweeping) judicial review would also be the effect of Scalia's construction of the Constitution, were it actually applied across the board.

That's why I think distinctions like activism versus restraint are suspect in concept, and worthless in practice. To use the phrase "activist judges" is to convey a category without content; it means nothing, yet always produces a response. People put it in sentences and nod their head gravely, as though they were talking about Darfur, mortgage backed securities, or some other political event they feel guilty for knowing nothing about, except that it "seems like a serious problem," and that "something should be done." That is why John McCain's promise draws not from any worthwhile taxonomy of judicial philosophies, but from ignorance and guilt.

The bottom line is that "activism," which conjures up Berkeley-eqsue images of protest and unrest, means nothing more than "politically undesirable." Because it is a loaded term, those who use it are the incestuous comminglers of the branches of government -- not the judges at whom the phrase is directed. It is people like McCain who inject politics into the judiciary. It's people like McCain who would legislate from the bench, by way of appointee. It is people like McCain who should anger Limbaugh and Levin.

Full post as published by Nuts & Boalts on October 27, 2008 (boomark / email).