Judicial Activism and Balls and Strikes

Some years ago the term “judicial activism” became common.  The phrase was coined by conservatives to claim that conservative judges apply the law and liberal judges ignore the law and make up the result.  Liberals picked up this theme and leveled accusations of “judicial activism” in connection with conservative-majority decisions, such as those on gun rights and campaign finance.

I have not been able to discern any consistent use or definition of the term “judicial activism,” other than that the person using the term does not like the decision they are criticizing.  The judges all seem to be attempting to apply the law; none admit to making it up.

The notion that judges never should, or do, bring their own sense of justice to bear was underscored by the testimony of John Roberts at his confirmation hearing that the role of the judge is like that of the baseball umpire, calling balls and strikes.  The umpire does not reflect on how he feels about balls and strikes; the pitch is either in the strike zone or it isn’t.

The notion that judges should read the law and not make it up may be easier to apply to a modern statute, which may be expressed at some length and buttressed by regulations and legislative history.  With enough words on papers to read, one can with confidence strictly “interpret” the words at hand and avoid any feelings about what the law should be.

This is not so easy with the decisions that are the most famous and controversial, usually those based upon the Constitution, particularly the first through fourteenth amendments.  There are relatively few words in those amendments and little in the way of legislative history.

Take the equal protection and due process clauses in the fourteenth amendment – “nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  There are thirty-one words in these two clauses combined, which boil down to ten key words – “due process of the law” and “equal protection of the laws.”

In 1896, in Plessy v. Ferguson, those words did not bar racially separate but equal accommodations.  In 1954, in Brown v. Board of Education, those words barred all state sponsored segregation in public schools.  Previously, these words did not bar states from declining to recognize gay marriage.  In 2015, in Obergfell v. Hodges, they did.

The words did not change over the years.  One can “read” and “interpret” these ten words all day long without firmly concluding that they alone bar segregation or support gay marriage.  What changed over time was the composition of the justices on the Supreme Court and the sense of justice of those members.

Take one more example, the Second Amendment: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”  In revolutionary times the state would raise militias of gun-toting citizens for defense, but these don’t exist in today’s modern era of standing armies and police forces.  Does the reference to “[a] well-regulated Militia” modify the entire amendment, essentially rendering it an anachronism, or does “the right of the people to keep and bear Arms” exist aside from militias?  For many years, the Supreme Court applied the prior reading.  In 2008, in District of Columbia v. Heller, the majority adopted the latter reading.  I don’t think any of the justices in the Heller case could be accused successful of not attempting to read and apply the words.  I suspect the reading of the justices was colored by their own feelings about gun rights.

In most cases I think all judges, conservative and liberal, attempt to apply the words of the laws before them.  I think anyone’s reading is necessarily colored by their opinions and biases.  In Constitutional cases, outcomes will be heavily influenced by the sense of justice of those on the Court.  I think this is what the Founding Fathers intended.  Pundits should resign themselves to this, and make many fewer accusations that justices authorizing disfavored decisions are engaging in some kind of un-American activity.