What exactly is judicial activism?

By Thomas L. Jipping
web posted March 12, 2001

Just when the Florida Supreme Court had shown the country precisely and clearly what this thing called "judicial activism" is, along come the liberal media to mess up this useful civics lesson.

Judicial activism describes the way a judge reaches a decision, not the decision he reaches. An activist judge takes the law that applies in a case - maybe a statute, as in the Florida recount case, or maybe the Constitution - and changes it to produce the results he wants. He can change it by creating a constitutional right that does not exist, such as the right to abortion created in Roe v. Wade. Or he can ignore a constitutional right that does exist, such as the Second Amendment's right to keep and bear arms or the Fifth Amendment's right to property.

A judge striking down a statute because it conflicts with the Constitution is not automatically judicial activism. In fact, it would be judicial activism to uphold a statute if it meant ignoring the Constitution. Likewise, it's not always judicial restraint to let a statute stand. In fact, it would be judicial restraint to strike down a statute if it genuinely conflicted with the Constitution.

The bottom line is not the particular result - liberal or conservative, striking down or uphold a statute - but the way a judge reaches a result. If he interprets the law involved, whether it is a constitutional or a statutory provision, as those who made the law intended and fairly applies the law so interpreted to the facts, the result is legitimate.

The Florida Supreme Court displayed judicial activism to the world more starkly than a whole raft of speeches, articles, memos, or ads could possibly do. The court, as you remember, took a statute requiring that counties complete manual recounts within seven days and gave them 19 days to do it. The court took a statute requiring the state election board to reject late county returns and required the board to include them. The court re-wrote what the legislature had done. That's judicial activism, plain for all to see. Finally, we're getting somewhere.

Now the U.S. Supreme Court the other day struck down a provision of the Americans With Disability Act that allows state employees to sue states. It's odd for the federal government to interfere in state matters like this and, besides, the 11th Amendment prohibits individuals from suing states. The only way the feds could authorize lawsuits in spite of the 11th Amendment is if a clear national pattern of discrimination was so widespread that it violated the 14th Amendment's guarantee of equal protection. Congress, you see, can pass legislation to enforce the 14th Amendment. In this case, Congress had only assembled a few dozen examples of disability discrimination by states, hardly the kind of national problem justifying the feds to interfere with state matters. The 11th Amendment is intact and decides the case.

Along come liberal columnists like E.J. Dionne, who writes for papers such as the New York Post and the Washington Post, and condemns this decision as judicial activism. It's judicial activism, he says, because "the Supreme Court decided that it had more power than the people's branch of government, Congress." He says it's judicial activism for the Supreme Court to strike down a statute. The Court, he writes should show more "humility and restraint about the court's powers."

Though I am not a betting man, if I were I would bet that Dionne would say the Court was correct when, in Roe v. Wade, it struck down a statute banning most abortions. He would not be concerned about any lack of judicial humility and restraint. He would not care that the Court said it had more power than the people's branch of government, state legislatures. Yet in Roe v. Wade, the Court not only struck down a statute, but it made up a constitutional provision to do it.

So let's see - striking down a statute in the name of a non-existent constitutional provision is fine, but striking down a statute in the same of a real constitutional provision is judicial activism. This is crazy, and shows just how badly the American people are being misled by some of these so-called commentators and analysts who are telling us all what to think.

Dionne has it exactly backwards. It was raging judicial activism when the Court in Roe v. Wade made up a constitutional right and then used it to strike down a statute. It was judicial restraint for the Court to take the 11th Amendment, right there for all to read, and use it to strike down this statute. What explains Dionne's confusion is his politics. He likes the result in Roe v. Wade, he does not like the result in this 11th Amendment case. For him, judicial activism is the label for any decision he does not like.

I hope Americans know better. Judicial activism is a huge problem, and the Florida recount mess finally exposed it and its enormous consequences. Don't let political advocates masquerading as legal analysts mislead you. Judicial activism makes stuff up, judicial restraint applies what's there. Any questions?

Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation.

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