On the July 27 edition of Fox News' Special Report with Brit Hume, during a report on bipartisan criticism aimed at the Supreme Court's recent decision in Kelo v. New London, regarding the taking of private property for public use, general assignment correspondent Major Garrett asserted that the decision had, “for the first time in recent memory, sensitized liberals to the potential dangers of judicial activism.” But, in failing to define the term or provide evidence for his use of it, Garrett advanced the unfounded conservative argument that “judicial activism” is the sole province of liberals.
Garrett's assertion echoed the claim that only conservative judges adhere to a doctrine of strict constitutional interpretation, while liberal judges “legislate from the bench,” to use President Bush's oft-repeated phrase. But while Fox News and other media outlets have repeatedly failed to offer a substantive definition of judicial activism, a recent study by Yale law professor Paul Gewirtz and recent Yale Law School graduate Chad Golder (detailed in a July 6 New York Times op-ed) offers one standard by which judicial activism may be measured: a willingness to strike down legislation or restrict its application, thereby circumscribing congressional authority to enact laws in a variety of areas, including the environment, civil rights, and consumer protection.
By Gewirtz and Golder's standard, those Supreme Court justices often labeled strict constructionists -- or, more accurately, “originalists” or “textualists,” who purport to discern and apply the original meaning of constitutional provisions -- are the real judicial activists. In fact, the study found that Justice Clarence Thomas was the most likely to strike down federal laws, while justices Ruth Bader Ginsburg and Stephen G. Breyer -- the only two current justices appointed by a Democratic president -- were the least likely to do so.
Moreover, as an article by constitutional scholar Cass R. Sunstein illustrates, judicial activists come in all political stripes. In a November 9, 2002, New York Times op-ed titled “Taking Over the Courts,” Sunstein argued that the sides advocating judicial activism or, conversely, judicial restraint have shifted back and forth between liberals and conservatives over the past century. He asserted that the current conservative federal judiciary has embarked on a “new program of judicial activism” :
In the 1960's and 1970's, judicial restraint was the overriding conservative theme. Conservatives offered principled criticisms of the Warren Court and Roe v. Wade. In this period, the conservative heroes were Oliver Wendell Holmes Jr., Felix Frankfurter and John Marshall Harlan, all of whom greatly respected the powers of Congress and state governments. They argued, time and again, that the Supreme Court should not use vague provisions of the Constitution to strike down laws enacted by elected officials. For much of the 20th century, conservative thought was encapsulated in Holmes's claim that a constitution “is made for people of fundamentally differing views.”
All this changed in the early 1980's. At that point, some conservatives started advocating an aggressive role for the Supreme Court. The most obvious reason is that once conservatives began to occupy the federal courts, the argument for judicial restraint suddenly seemed less appealing. (The change is precisely paralleled by the earlier shift on the liberal side; liberals were committed to judicial restraint between 1910 and 1950, but many switched in the 1960's in support of the aggressive role of the Warren Court.)
Despite these indications that ideological conservatives are the current judicial activists, Bush senior adviser Karl Rove and other conservatives have used phrases such as “liberal activist judges” to stoke political outrage across diverse groups of conservatives. A November 2004 Atlantic Monthly article explained this semantic strategy:
Among Rove's other innovations was a savvy use of language, developed for speaking to the conservative base about judicial races. Candidates were to attack “liberal activist judges” and to present themselves as “people who will strictly interpret the law and not rewrite it from the bench.” A former Rove staffer explained to me that the term “activist judges” motivates all sorts of people for very different reasons. If you're a religious conservative, he said, it means judges who established abortion rights or who interpret Massachusetts's equal-protection clause as applying to gays. If you're a business conservative, it means those who allow exorbitant jury awards. And in Alabama especially, the term conjures up those who forced integration. “The attraction of calling yourself a 'strict constructionist,' ” as Rove's candidates did, this staffer explained, “is that you can attract business conservatives, social conservatives, and moderates who simply want a reasonable standard of justice.”
From the July 27 edition of Fox News' Special Report with Brit Hume:
GARRETT: The Supreme Court's decision has not only united liberals and conservatives in defense of private property, it has, for the first time in recent memory, sensitized liberals to the potential dangers of judicial activism.