We Are All Judicial Activists Now

Abstract:     
Judicial activism is in serious, though undeserved, trouble. The current impasse over its role in constitutional discourse pits two opposed positions committed to different paradigms of judicial activism against one another. One side condemns activist judges for engaging in ultra vires adjudication by reading their idiosyncratic values into the Constitution. In this view, the charge of judicial activism has significant content and should be deployed to restrain renegade judges. The other side insists that calling someone a "judicial activist" has only emotive content and is used merely as an empty epithet denouncing judges with whom one disagrees. This Article redirects the controversy over judicial activism by distinguishing between two different, but interrelated, levels of constitutional discourse: the surface level and the deep level. The problem of judicial activism exists on the surface level of constitutional discourse and will remain irresolvable on that level. However, once we attend to the deep level of constitutional discourse, the role of judicial activism becomes clear. The presence of judicial activism on the surface structure of constitutional discourse reveals on the deep structure reasonable disagreement over the meaning of key constitutional provisions. The idea of "reasonable disagreement" is profitably explicated by combining what social theorist W.B. Gallie called "essentially contested concepts" with the political philosopher John Rawls' important categorization of "the burdens of judgment." These obstacles to rational consensus are endemic to a republican democracy. Consequently, reasonable disagreement over key constitutional provisions should not be regarded negatively; it is an inevitable and positive feature of any society championing liberty, equality, and pluralism. However, the inevitability and desirability of reasonable disagreement has institutional consequences for constitutional review. When reasonable disagreement is inevitable, legislatures, not courts should have the last word on constitutional meaning.

Keywords: judicial activism, reasonable disagreement, essentially contested concepts, burdens of judgment

JEL Classifications: K10, K4

Accepted Paper Series