Defining "Judicial Activism"

by Pejman Yousefzadeh on July 13, 2009

I get so tired of the kinds of statements that Senator Russ Feingold made in today’s hearings on Judge Sotomayor’s nomination:

“At this point, perhaps we should all accept that the best definition of a ‘judicial activist’ is a judge who decides a case in a way you don’t like,” Democratic Senator Russ Feingold said, noting a series of controversial rulings forced through by the current conservative majority on the high court.

No. Perhaps we shouldn’t all accept that. Perhaps we should all accept instead that the best definition of a “judicial activist” is a judge who decides a case based on a reading of a statute and/or the Constitution that is plainly at odds with the original public meaning of the language used at the time the statute or the Constitutional provision in question was crafted. Because this, after all, was the meaning used to define the term “judicial activist” from the very beginning, before people like Senator Feingold tried to change the meaning to suit their own political agendas.

And of course, this means that merely because a judge or a Justice decides to overturn a statute, it does not mean that the judge in question is a judicial activist. (Attention: E.J. Dionne!) After all, the statute may have been crafted in contravention of the Constitution. If I am a Supreme Court Justice and I am sent a hundred cases concerning the Constitutionality of statutes that call for federal courts to render advisory opinions, I am going to rule each and every one of those statutes unconstitutional. That doesn’t make me a judicial activist.

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