Defining Judicial Activism by Federal Appellate Judges
First off, I wanted to thank Dan and the rest of the Concurring Opinions bloggers for having me back so soon. My last stint was cut a bit short by some unexpected family issues. As it turns out the subject I wanted to blog about then, judicial activism by federal appellate judges, is more timely now because of the Sotomayor nomination. She is already being attacked as an activist judge as a basis for rejecting her nomination (even if those attacks are just part of some inevitable game we play). For some time, I have been working on a project that attempts to provide an effective measure of judicial activism by federal appellate judges like Sotomayor. Over the next few posts, I will explain my measure and show some preliminary results. However, I need to do a bit of work defining the concept first.
The Honorable Frank Easterbrook referred to judicial activism as “that notoriously slippery term.” Despite the ambiguity of the concept, scholars have sought to measure it, judges frequently accuse their colleagues of it, and the media and public continue to apply it without any consistency.
The usual definitions offered by scholars for the term include: striking down statutes or actions by other branches or state governments, ignoring precedent, legislating from the bench, failing to use accepted interpretive methodology, results-oriented judging, issuing “maximalist” and not “minimalist” holdings, and using broad remedial powers. Interestingly, these definitions are often in tension with each other. For example, if a judge believes that prior precedent requires him or her to strike down a federal statute, the decision could be construed as activist either way the judge holds. There are two common threads in the definitions above. First, they all involve instances where judges place their judgment above others. Second, the “others” involved are constitutionally-significant actors: the legislature, state governments, the executive, and other courts.
So, largely drawing from the existing definitions of the term and in a attempt to remove some of the pejorative connotations involved, I offer a new definition. The first part of the definition is that judges are “activist” when they substitute their judgment in place of other constitutional actors. The second part to the definition requires a bit more explanation. What is lacking in most attempts to define activism is a distinction between instances when that substitution of judgment is warranted and not activist. There are certainly instances where a court should not defer to another constitutional actor under virtually every theory of judicial decision-making. However, it is difficult to provide a clear line between the “activist” and “non-activist” decisions.
Thankfully, there is some scholarship that offers a viable distinction. Frank Cross’s excellent California Law Review article Decisionmaking in U.S. Courts of Appeals is most helpful in this regard. Cross describes the three major approaches that describe judicial decision making at the federal appellate level: the formal, political, and strategic theories. I contend that, according to the general conception of activism, the formal theory of law is non-activist whereas the other two theories are activist approaches to the law. Consequently, my full definition of activism is: judges are “activist” when they substitute their judgment in place of other constitutional actors when the formal theory would predict otherwise.
All of this definitional work might seem like needless hand-wringing, but I think it is important to reach some common definition of a concept that has different connotations to various groups. Further, offering a definition that isn’t aggressively pejorative makes the discussion about the subject hopefully more reasonable. Perhaps most importantly for my purposes, agreeing on a definition determines the scope of possible measures for the concept that we might consider.
In my next post, I’ll discuss the shortcomings of the existing measures and studies of judicial activism. If you happen to be at the Law & Society conference like I am, and want to hear more, stop by my presentation tomorrow at 4:30 PM in the Mt. Wilson room.