Activism Metric

Judicial activism is a dirty phrase among me, Auskunft, and our conservative colleagues. Rightly so, we think; activist courts impose their ideologies on the legal system irrespective of that system's established rules. Often, activist courts overturn laws created by the state and federal legislatures, indirectly repudiating the will of the people by substituting unelected judicial officials' judgment for the judgment of elected, popularly-accountable legislative bodies.

So far, so good. Another thing that bothers me, but perhaps is not so closely tied to my political alignment, is assumption and speculation divorced from empirical grounds. I know philosophers are often guilty of shutting their minds from reality and following the trail of an abstract thought to higher and higher levels of abstraction, until the way back to the ground can no longer be discovered. Speculation is useful only if it can constantly, at each step of logical inference, relate its new insight to concrete facts of existence.

Now combine those two thoughts - instead of calling this court or that court activist based on presumption, we would do better if we could examine courts' activism or restraint by a concrete measure. Assign a numerical weight to activism, call it the "Activism Score" or whatever you want, really, and you have an objective basis for evaluating judicial activism.

That, I think, is what the first note of this paper from the Federalist Society is trying to do. Define activism unambiguously, then balance the number of decisions that fall under the "activist" side of the dichotomy with the number of decision that fall on the "restrained" side, and you decide how activist a court is. A perfectly balanced court (though a supporter of restraint would hardly call the balance perfect) would have equal numbers on each side; the greater the proportion on one side, the farther the court in question would lean toward that model of judicial interpretation.

However, if the standard for evaluation is misleading, it's useless. And, sadly, I am not sure a numerical measure of judicial activism is possible. Let me explain. If "overturning a statute" is activist, then what of the cases where the clear precedent of the court is that the type of action authorized by the legislature in the overturned statute was unconstitutional? Whichever side the court comes down on, it's overturning some precedent, either the expressed will of the legislature or its own doctrinal history. I think it is important to recognize that activism constitutes many different judicial actions, some of them potentially in perfect line with contemporary legislative actions.

The consequence of this ambiguity is, well, ambiguity. Sometimes the mind has to synthesize a general activism "vibe" coming from a case or line of cases, and no concrete numerical analysis is going to help. It's imperfect, but an inappropriate insistence on science where the subject matter is not purely scientific is hardly perfect either.

Anyway, keep reaching for that rainbow, guys!