Analysis: 'Judicial activism' Hard to Define
'Judicial activism' Hard to Define Despite Sudden Uproar over Subject
By Robert Marus
Associated Baptist Press
April 26, 2005
WASHINGTON (ABP) -- Even though "judicial activism" may simply be in
the eye of the beholder, according to legal experts, it is a recurring
charge against judges that is almost as old as the Republic itself.
But that hasn't kept the charge from becoming the latest political
news. Whatever it is, "judicial activism" has Washington and the
nation in an uproar, emerging as the Religious Right's latest rallying
cry in the culture war.
"Our judiciary has banned prayer in schools and evicted Christmas
displays from town halls," said House Majority Leader Tom DeLay
(R-Texas), to a recent conference of religious conservatives in
Washington. "These are not examples of a mature society, but of a
judiciary run amok."
And Focus on the Family leader James Dobson, speaking in Kentucky
April 24 to a rally designed to push President Bush's nominees to
federal courts, said "the issues we care about and the values that are
important to us" are being threatened by court decisions.
"There is a majority on the Supreme Court that is ... unaccountable
and arrogant and imperious and determined to redesign the culture
according to their own biases and values, and they're out of control,"
What could provoke such strong language by DeLay, one of Congress'
most powerful leaders, and Dobson, patriarch of the evangelical right?
Perhaps these two factors -- a highly partisan political debate over
judicial nominees in Washington and recent court decisions that have
particularly outraged conservative religious activists.
The recent Terri Schiavo case -- in part due to the emotional issues
it raised -- brought intense scrutiny to the role of judges in dealing
with controversial cases. But for many conservative religious
activists, an allegedly out-of-control state and federal judiciary has
been an issue of concern for years.
In the April edition of Focus on the Family's Action newsletter,
Dobson leveled the "activism" charge at the judiciary in general.
"How could such a great and freedom-loving people have allowed
themselves to be dominated by a handful of unelected, unaccountable,
arrogant and often godless judges, many of whom receive lifetime
appointments and regularly circumvent the democratic process?" he
Dobson mentioned Thomas Jefferson's warnings about the Supreme Court's
famous 1803 Marbury vs. Madison decision, which firmly established the
principle of "judicial review," which means that federal judges get to
examine laws enacted by legislatures to ensure that they conform to
"What we have today, 202 years later, is an oligarchy (rule by a small
cadre of elites)," Dobson wrote. "The courts simply strike down laws
and policies they don't like, whether their opinions reflect the
provisions of the Constitution or not."
That's exactly what many conservatives mean when they accuse a judge
of "activism," according to Tom McClusky, director of government
affairs for the Washington-based Family Research Council.
"Activist" judges are "judges who seem to reach beyond the
Constitution and the power granted to them in the Constitution -- and
the laws passed by Congress or even by state legislatures -- and [who
end up] making law, instead of their role through the Founding
Fathers...to interpret law," McClusky said. His group has been at the
forefront of many of the most controversial federal court cases in
recent years -- such as the Schiavo case and cases over
government-sanctioned religious expression.
When asked for examples, McClusky cited the four-judge majority on the
Massachusetts Supreme Judicial Court that, in a 2003 decision, paved
the way for the legalization of same-sex marriage in that state.
"I mean, they cited international law, they cited their own personal
opinion on the issue of same-sex marriage," McClusky said. "It's
Congress' role to pass legislation, and it's the judiciary's role to
interpret that legislation. But, more and more, they seem to be
completely changing any intent" that legislators might have had in
The problem, several legal experts said, is that interpreting the
Constitution -- particularly in a society far more complex than its
writers could have dreamed of -- is about as exact a science as
interpreting the Bible.
"Nobody ever complains about 'judicial activism' when they agree with
the opinion," said Brent Walker, executive director of the
Washington-based Baptist Joint Committee for Religious Liberty.
"People try to make a sharp distinction between interpreting the law
and legislating from the bench, but which one that is is often in the
eye of the beholder."
"A 'judicial activist' is a justice with five votes, and 'judicial
activism' is an opinion that you disagree with," said Walker, whose
organization advocates for a strong reading for both of the First
Amendment's religion clauses -- which ban both government
establishment of religion and restrictions on the free exercise of
For example, he noted that many conservatives have criticized a recent
Supreme Court decision on capital punishment. In it, the court's
majority found the practice of executing convicts who were under 18 at
the time they committed their crimes a violation of the Eighth
Amendment's ban on capricious punishments.
"When you try to unpack the meaning of 'cruel and unusual punishment'
in the Eighth Amendment, what did it mean 200 years ago and what does
it mean for us today?" Walker asked. "There's a lot of room for
disagreement over whether applying those four words and that very
general concept amounts to interpreting the law or making the law."
Charlie Geyh, a professor at Indiana University School of Law, said
the very nature of judging -- determining what the law is and applying
it to an individual case -- often lends itself to the charge of
"activism" from those on the losing side.
"The tricky part is when there is a case where the court ... fills the
gap by saying, 'We don't know what the law is,' the loser is almost
invariably going to think the judge has gone further than he should
have in filling that gap," he said.
He referred to the Marbury vs. Madison decision itself. "It was an
open issue. There was nothing clearly stated in the Constitution to
give them that power [of judicial review], but the court looked at the
Constitution and said, 'Yes, we have that power,'" said Geyh, who has
a forthcoming book on the courts and Congress.
"The judges have to be activist in some sense, because the only reason
that they are being asked to resolve questions is because they are ...
questions that are undecided," he continued.
The conservative critiques of judicial activism in the modern
environment, Geyh contended, come in two main forms. "One is to say
that it's one thing to acknowledge the flexibility of the
constitutional language and another thing to abuse it," he said,
referring specifically to cases in which courts have determined
Americans have rights to privacy, reproductive autonomy and other
civil liberties, even though those rights are not protected explicitly
by the Constitution.
"In those areas, from the conservative standpoint, there's flexibility
perhaps, [but] not as much as these judges have given to it," Geyh
said. "That approach [against judicial activism] is a perfectly
But, he continued, "the second is to use it as a political buzz
phrase, with which I have problems." That view, according to Geyh,
contends that, if judges "decide something that is contrary to our
view of the law, they must necessarily be activists."
But the "activism" accusation increasingly is fueling a political
debate in Washington. Democrats in the Senate have blocked 10 of
President Bush's judicial nominees because of what they call extremist
beliefs on certain issues. Meanwhile, Bush -- and his supporters in
the religious conservative community -- have mounted an all-out effort
to get all of his nominees passed because those judges "won't
legislate from the bench," as Bush has repeatedly said.
Historically, appointees of conservative Republican presidents have
been accused of activism of their own, Geyh said. For instance, he
noted, the current Supreme Court -- dominated 7-2 by Republican
appointees and considered very conservative by mainstream legal
scholars -- has struck down laws passed by Congress at a much faster
rate than its more liberal predecessors.
"When [Chief Justice William] Rehnquist's court has gone ahead and
looked at Commerce Clause jurisprudence, it turned back the clock 60
years and ignored congressional power," Geyh said. "Now from the
standpoint of liberals, that is activism."
"From the conservatives' account, that is simply correcting the course
-- going back to the original intent [of the Constitution]. So, each
side can lay claim, can point the finger to the others and say 'you're
He also cited the court's still-controversial 5-4 decision in the 2000
Bush vs. Gore case that effectively ended that year's drawn-out
presidential election -- and gave the presidency to Bush. Gore
supporters accused the court's majority of ignoring their own
precedents in ruling on cases involving the Equal Protection Clause of
Brent Walker noted that "it was the most conservative justices, with
Justice [Antonin] Scalia leading the way, who gutted the Free Exercise
Clause" of the First Amendment in a 1990 decision, Employment Division
vs. Smith, that limited the religious-liberty rights of individuals
and groups. "The court overturned decades of precedent without either
party urging it to do so, [either] briefing the issue or addressing it
in oral argument," Walker said.
One of Bush's filibustered nominees to the 5th U.S. Circuit Court of
Appeals was once herself accused of an "unconscionable act of judicial
activism" -- by Bush's own attorney general. The accusation was made
by then-Texas Supreme Court Justice Alberto Gonzales against his
colleague, Priscilla Owen, and two others who dissented from a
majority opinion on an abortion case.
And some groups repeatedly accused the judges involved in the Schiavo
case of "activism" -- even though the main Florida state judge, George
Greer, is a conservative Republican and Southern Baptist whose
decisions repeatedly were upheld by higher state and federal courts.
"The truth is, 'judicial activism' is just about today's emptiest
soundbite," said Jesse Rutledge, spokesman for the Justice at Stake
Campaign. "It's come to mean any decision you don't like, or, more
broadly, any series of decisions you don't like."
Rutledge's group was formed about two years ago, he said, "to address
the political attacks coming from politicians and special-interest
groups" against judges and their rulings. Justice at Stake believes
such attacks undermine public trust in judicial decisions -- which,
they say, ultimately undermines the institution of the independent
judiciary and the constitutional order.
But Rep. Lamar Smith (R-Texas), addressing conservative activists in
Washington earlier this month, said it's not undermining the courts
when, in his view, they have usurped the authority of the other
branches of government.
"Activist judges regularly deny the Constitution when they take for
themselves powers guaranteed in the Constitution to the executive and
legislative branches of government," he said. "Congress is right to
evaluate judges when they behave like unelected superlegislators. When
judges step out of bounds, Congress should in fact raise a red flag.
This is not an attack on the separation of powers. It is Civics 101."
Rutledge said attacks on the judiciary from liberals are just as
harmful as those from conservatives.
"Many liberal groups are engaging in the same angry rhetoric and are
trying to match fire with fire and say that there is such a thing as
conservative 'judicial activism,'" he said. "From where we sit, we
think the term is so empty as not to mean anything."
As a remedy, Rutledge said, the warring parties should set the term
aside "and engage in a more comprehensive, thoughtful debate about the
role of the courts in our society."
"We charge our courts with making the most difficult decisions," he
continued. "That is what they are there to do. That is their job. And
there are always going to be controversial cases, there are always
going to be losers, there are always going to be hurt feelings that
come out of our system of government. And if every time you lose, all
you do is scream until you're red in the face at the umpire, then, you
know, maybe you're just a sore loser."
But Rutledge's dream of a civil debate on the role of the courts may
not be taking place anytime soon, if the current rhetoric prevails.
Dobson, in his Action newsletter article, called for the impeachment
of six of the nine U.S. Supreme Court justices -- four of them the
appointees of Republican presidents. He called for all of Bush's
nominees to be approved. "These judges are all committed to applying
the Constitution of the United States in a conservative manner and
interpreting it as it is written," he said.
"If these individuals, and many others like them, were to be appointed
to the federal bench, we could make significant strides toward the
restoration of religious speech to the public square, the enforcement
of laws regulating obscenity, the protection of voluntary prayer in
public schools, the defense of the institution of traditional
marriage, and the protection of pre-born babies from the horrors of
"In short," he continued, "the makeup of the federal judiciary in the
coming years will play a key role in determining how these issues --
and many others that we hold dear -- will be decided, and in
demonstrating what kind of people we are as a nation."