The confirmation hearings of Judge Sonia Sotomayor should be interesting for sociologists. We have two polar groups, each with tremendous resources and access to media, framing the qualities of a single individual. Use of language to sway the framing is of interest to me.
Among the most interesting discursive formations that will be offered is the concept of an “activist” judge. Conservatives will caution against the appointment of an activist judge to the high court, while so called liberals will, most likely, do their best to deny that Judge Sotomayor is an activist judge.
What I haven’t heard thus far, and am not expecting to hear quite frankly, is a critical analysis of the very notion of an activist judge. Exactly what is an activist judge? Once defined, does Judge Sotomayor fit the definition of an activist judge? If she does, is she any different from any other judge, liberal, conservative or centrist? Also, if adequately defined, is activism necessarily a bad thing in a judge?
Frankly, the term “activist judge” is a purely rhetorical tool with very selective meaning. When the term “activist judge” is applied, what the debater means is “liberal judge.” So the term is used with regard to liberal judges by those who would prefer judges to offer a more “strict constructionist” attitude regarding judicial rulings. The best definition offered for the term comes from Judge Andrew Napolitano, “An activist judge is one whose ruling you disagree with. And if you agree with what the judge has done, you call them heroic and honest.” (legalzoom.com)
But there is a generalizable definition of “activist judges.” Activism on the part of a judge happens when, in essence, policy is determined behind the judicial bench rather than through legislation. This is especially true when the rulings of judges serve to overturn or reverse established legislation or existing policy. Activism is especially acute when the ruling seams to contradict the intentions of the founding fathers when they wrote the Constitution.
With regard to the power of judges to reverse established legislation or existing policy, this question was answered in 1803 when the Supreme Court, presided by Chief Justice John Marshall, established the precedent of judicial review in the famous Marbury vs. Madison case. Was Marshall an activist judge? Some would suggest that he was. Regardless, judicial review has a two hundred year history and is certainly not the exclusive domain of liberals.
It’s not uncommon for judges, especially Supreme Court justices, to establish policy with their decisions. Judge Sotomayor admitted this, but so has Justice Scalia. It is as true if a conservative, strict constructionist perspective is applied to a novel situation as it is true if a liberal “activist” approach is used.
The bottom line is that every decision made by a judge is “active” by virtue of the nature of the job. Even when a judge rules in concordance with accepted legal precedent; that activism reinforces the status quo.
However, it’s often the case that a Supreme Court justice must rule on matters that are novel with regard to established law. The Constitution is over two centuries old. Technology and social innovation have long presented challenges to the high court. In many instances, there is no way to determine the intent of the founders. The justice, conservative or liberal, must make an active stance based on the realities of modern life. In framing the first Amendment, the founders had no intentions with regard to new age religions like the Summum Church, or expressive media like the Internet. The founders had no experience with cheap, readily accessible weapons like submachine guns and assault rifles. Modern surveillance technology wasn’t even a bad dream for James Madison. There’s no way for a judge to rule on such matters without taking an activist, interpretivist stance. There is no strict interpretation of the Constitution that precludes active decision making.
And reversing legislation, and even earlier court precedents is not necessarily a negative thing. As society changes, and the current of history shifts, judges will find themselves actively responding to these trends. At one time the Supreme Court ruled that a man, Dred Scott, was the legal property of another man. The Constitution defined slaves as 3/5s of a person. Separate was considered equal. Our society has changed, has renegotiated the norms and values that form the foundation of our legal constructs. As the norms and values change, it may fall to judges to reformulate the application of law. It may also be the decision to reaffirm the traditional values in the face of socio-historical change. Regardless, both approaches are active applications of law with implications on policy.
The very concept of an activist judge is a nonsense term. It’s a synonym for “liberal judge.” Why don’t conservatives just come out and say they don’t want to approve a liberal judge? Why do they have to turn to the rhetorical tool of “activism” to justify their position? Well, it’s a given that conservatives would not want a liberal judge on the bench. For that matter, liberals don’t want conservative judges on the bench. Consequently, to make such a statement is meaningless in its tautology. By framing the issue as being against activism as opposed to liberalism, they give the impression that their opposition is meaningful beyond just following the ingroup/outgroup dynamics of party politics. The pseudo-concept of opposing “activist” judges lends pseudo-legitimacy to their position.
But like most rhetorical formulations used to re-frame an issue, there is very little substance to the definition. Activist judge is a meaningless category and should be treated as such. Yet it will be interesting to watch. My prediction, the concept of activist judge will not be analyzed or criticized. Both sides will dance around the presumed legitimacy of the claim…and thus reinforce its legitimacy.