Law & Society Blog

Hanno has taken issue with my post, which posits a semantic nexus between first-order and second-order observation:

I don’t think that a decision must necessarily be unlawful from an internal point of view in order to be considered activist from an external point of view.

All right, then. Here is a system showing the claims of defective adjudication that can be made depending on the perspective of the speaker.

I will compare the claims to the way “judicial activism” is commonly used, by which I mean something like the following:

Test Claim of Judicial Activism: The court’s decision in Xyz is bad, because the court did not just apply the law. Rather it used its power to further the judges’ political Agenda. The court should enforce the constitution and the law, but should not rule the country from the bench.

Let’s see whether such a claim can sensibly be made from the observer’s perspective, the participant’s perspective, or whether it requires a combined view from the observer’s and participant’s perspective.

1. Observer’s Perspective [Second-Order Observation]

a) Judicial Activity

Claim: “The Rehnquist Court is the most activist court since it has invalidated more acts of Congress than any other court before it.”

Verdict: Not a Claim of Judicial Activism

Comment: Without information on the absolute number of acts of Congress or the number of unconstitutional acts of Congress it is impossible to tell whether the Court is “enforcing the constitution” or ruling the country from the bench.

b) Law As Politics

Claim: “Everything the courts do is politics. A ruling means what it does. There are no hard or easy cases.”

Verdict: Not a Claim of Judicial Activism

Comment: An old favorite. The radical position of realism. It is true, too: Everything is politics in the sense that every court ruling can be observed from the political system and in its terms. But from this perspective, there is no way to determine whether the court is “enforcing the constitution or the law,” since such categories don’t exist. It is impossible from this vantage point to say that the court is “just” applying the law, since no judge and no court is ever “just” applying law.

2. Participant’s Perspective [First-Order Observation]

a) Political-Question Argument

Claim: “I dissent with from the majority opinion since I believe that the question at bar is a political question not properly decided by the courts. This court should dismiss the claim and leave the plaintiff to seek to vindicate his interest through the political process.”

Verdict: Claim of Judicial Activism (Maybe)

Comment: I almost didn’t concede this one. The judge refusing to rule because the case raises a political question references explicitly the demarcation of the legal and the political systems. The argument is still a legal argument since the political-question doctrine is the means by which the law imports the issue into itself and subjects it to the lawful/unlawful distinction. This shouldn’t come as a surprise, of course, because the (legal) system itself determines its boundaries. But I have my doubts that this is a judicial-activism claim. The question turns on whether the court can stumble into a political question, or, put differently, whether the court can decide a political question without pursuing a political agenda. Misapplication of the political-question doctrine comes to mind. In that instance, the claim “the court thought it was deciding a ‘case or controversy’ but really it decided a political question’” doesn’t strike me as a judicial-activism claim. Perhaps. (These are just prolegomena, after all).

b) Judicial Error

Claim: “The court got it wrong. The constitution says “property” — full stop. There was no room for the court to introduce limitations or exceptions here.”

Verdict: Not a Claim of Judicial Activism

Comment: This is a straight-up doctrinal disagreement, an entirely immanent argument. It cannot be a charge of judicial activism (without further claims) because if it were, every wrongly-decided case would be an instance of judicial activism. Judicial activism entails the claim that the court has overstepped its bounds, has done more than apply the law and has ruled from the bench. Simple misapplication of the law or constitution is still application of the law or constitution and is not (necessarily) a usurpation of the role of the legislature.

3. Participant’s and Observer’s Perspective Combined

a) Judicial Activism

Claim: “The court decided the wrongly and “invented” a constitutional right that doesn’t exist. The court did so to further a specific political agenda.”

Verdict: Claim of Judicial Activism

Comment: This is the one, judicial activism in the strict sense. From an internal perspective (and accepting that the constitution and law do provide guidance), the claim is made that the decision was substantively wrong. The additional claim is then made that the court pursued a political agenda, and therefore violated its duty to only enforce constitution and law, and that the court attempts to rule the country. This claim mirrors the test case above. It shows how narrowly the category of judicial activism should be drawn to avoid mistaking simple substantive disagreement on the one hand and correct enforcement of the constitution and law (no matter whose political ends it serves) on the other for judicial activism.

b) Judicial Passivism

Claim: “The court is closing its eyes to the political reality and consequences of its decisions. Hiding behind the constitution and abstract doctrine, which it applies faithfully, the court refuses to make necessary changes to the law, thus preventing necessary political change.”

Verdict: Depends

Comment: Tough one. The claim recalls the Lochner era, and I have therefore affectionately called it “mechanical jurisprudence” in the graph in my previous post. During the Lochner era the courts resisted repeated attempts by the legislature to change the law (on political grounds, as is natural for the legislature). That is the basis for the obstruction element of the argument. I hesitate to call this sort of thing judicial activism, but am willing to concede that the difference I am drawing may be a nicety. Where the claim is slightly modified, and states that the court’s decision is correct and another (incorrect) decision would have been desirable for political reasons (that is, if the obstruction element is missing), the charge is not one of judicial activism. (I am indebted to Hanno Kaiser for the term “judicial passivism.”)

I hope this system of judicial-activism claims is useful to focus the discussion (in the sort of way a birthday present for the man-who-has-everything is useful). The serious core of my posts is this: If a charge of judicial activism is made, we should first demand to hear how the court got it wrong (and no political arguments allowed, only legal arguments). If little or nothing is forthcoming on that end, it will take a very strong additional argument to show why the court should have gotten it wrong, to support the claim of judicial activism.

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