Conservatives and the Seven Sins of Judicial Activism

Abstract:     
This article evaluates the jurisprudence that the Court's conservative wing currently offers (both in majority and in dissent) against seven indices of judicial activism: countermajoritarian activism; nonoriginalist activism; precedential activism; jurisdictional activism; judicial creativity; remedial activism; and partisan activism. Part I addresses the first six indices. I discuss whether selected decisions are fairly susceptible to the activist label under each criterion and, if so, whether there are reasons that suggest that the cases are nevertheless defensible, even to those who generally oppose activist decisions. Part II presents an overall appraisal of whether the conservatives can be fairly labeled as activist and, if so, what that conclusion might say about the meaning of judicial activism and the enterprise of judicial decisionmaking generally. Additionally, because measuring a court's activism may require one to ask "activist compared to what?", I will evaluate the judicial activism that has achieved conservative results against the activism that has achieved liberal outcomes. Part III discusses the seventh sin-partisan activism. I separate this criterion from the others because it is potentially the most damning. While some level of activism may necessarily inhere in the process of constitutional interpretation, using judicial power to accomplish purely partisan ends does not. Finally, I conclude that the conservatives have indeed been activist with respect to five of the first six indices (remedial activism being the exception), but that in many instances, this activism is defensible, and that their overall record is neither unprecedented nor excessive in comparison to historical norms. Their fault, if any, is in their disingenuousness. They, or more often their defenders, claim that theirs is a jurisprudence more principled and more restrained than that of their liberal counterparts when in fact it is nothing more than a jurisprudence designed to effectuate particular results. I reach no conclusion, however, on the seventh sin. Partisan activism is a serious charge and the cases neither establish nor refute that the conservatives have engaged in it.

Keywords: Constitutional law, judicial review, judicial activism, politics and courts

Accepted Paper Series