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We’ve made the point before that the distinction which systems theory draws between the observer’s perspective and the participant’s perspective relates to the distinction between realists and formalists. In system’s theory, the observer [or second-order observer] of a social system (such as law) understand the system by observing the participants [or first-order observers] as they apply the system’s defining dichotomy: in the case of law, this dichotomy is lawful/unlawful. Unlike the participants of the law (such as judges), the observer derives no guidance from the lawful/unlawful distinctions. Realism (at least in its most radical form) also posits that the judge derives no guidances from the law (but rather from socio-economic circumstance, politics, or breakfast). Formalism on the other hand maintains that rules give at least some guidance and that they do provide an answer to the judge’s question, “how should I rule?” That’s the participant’s perspective.

Here is how this distinction maps onto one of the favorite slurs of the day: judicial activism. The question is: how do we tell that a a decision is an instance of judicial activism?

First, judicial activism is sometimes taken as the court’s work of striking down legislation. In that sense, the Rehnquist court was the most activist court in history, invalidating more acts of congress than any court before it. But the court’s invalidation of federal statutes is only a problem when those statutes shouldn’t be invalidated: perhaps Congress, during the years of the Rehnquist court passed more unconstitutional statutes than any US Congress before it? Just by counting how many statutes were struck down, we can’t tell, one way or the other. This view of judicial activism (perhaps more properly called judicial activity) is a view strictly from the observer’s perspective. It is external to the law, and does not consider the lawfulness/unlawfulness (constitutionality/unconstitutionality) of either the invalidated statutes or the invalidating rulings of the Supreme Court.

Usually, of course, judicial activism is not used in this sense of “judicial activity” but entails a value-judgment: the charge that judges legislate from the bench, or become revolutionaries in robes, or otherwise exceed their judicial mandate by taking as reason for their decisions matters that they are barred from considering. Judges are to apply the Law, and not their political agendas (or other extra-legal criteria). (Kermit Roosevelt has related post on Judicial Activism Part One and Part Two) This view of judicial activism contains a two-fold claim: first, that the judges decided the case wrongly, and second, that they did so in order to achieve an extra-legal end or by applying extra-legal criteria (for convenience, I’ll call such criteria “political” from now on).

Consider this graph, which lays out the two prongs of judicial activism: First, the question whether the decision was correct as a matter of law or doctrine. This is an application of the internal perspective, the perspective of one who seeks guidance from the rules and principles of the law. Since the charge of judicial activism entails the charge of legislating from the bench or otherwise exceeding the proper role of the courts (which is, of course, to apply the lawful/unlawful distinction), a decision that is internally correct-that isn’t wrong as a matter of doctrine-can’t be an instance of judicial activism.

The second prong, called here “political agenda,” represents the external criteria. It represents not the lawful/unlawful distinction, but rather the distinction of the political system (or some other, non-legal system, such as religion or aesthetics). The political system’s fundamental dichotomy might be seen as “public welfare/public detriment.”

A charge of judicial activism is structured like this: (1) In Roe v. Wade, the court misapplied the Constitution (by, for example, subscribing to a “nonexistent right to privacy”) and (2) the judges imposed their views of public welfare upon society (that is, the balancing of the woman’s interest and the fetus’s interest according to stages of fetal development).

The interesting point is that the judge remains a first-order observer even when he or she applies a political criterion. Take Brown v. Board of Education. The court imported into the law a questions that had not been there before: the socio-psychological effect of segregation (represented in the opinion by the weight given to the studies with the dolls). The court was therefore activist, by leaving settled doctrine which controls which facts matter to the law and which don’t. But note that such extra-legal considerations became legal considerations in the process, and that the Brown-court still ultimately applied the lawful/unlawful distinction. The recent and much-maligned decision in Kelo on the other hand was not activist: It merely extended the definition of “public use” using the internal criteria of the law (not a radical extension either, to my mind, but that is beside the point).

Kelo and the reaction to it show that people who disagree with the political impact of a decision don’t hesitate to call the court’s decision (internally) wrong, often in a naked assertion. There is a contradiction in such an argument, if the argument reads “the court got it wrong, because I disagree with the political effect.” The critique should make explicit some way in which such political considerations are relevant or should have been relevant under “the law.” Otherwise the charge of judicial activism simultaneously demands and deprecates the political malleability of court decisions. Posing as an argument that “the court shouldn’t legislate from the bench,” the argument really says “the court should legislate from the bench, but my way not their way.” And here is an opportunity for a moments introspection: To what extent do we want the court to legislate from the bench? Lochner came before the backdrop of forty years of settled precedent and was probably represents the correct application of the internal lawful/unlawful criterion at the time. The charge of “mechanical jurisprudence” was the demand that the legal system should incorporate aspects of the political system: that some political or social considerations should be legally relevant.

It follows from the structure of judicial activism proposed here that the proper response to the charge of judicial activism is to show the defensibility of the decision as a matter of law, and not as a matter of politics. Whether the court in Brown, Roe v. Wade, or Kelo was activist or not turns on whether they got the law right, and not on whether the decision is right for society and our times.

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