Who's Afraid of the Big Bad Activist
Prof. Larry Solum looks at the usefulness, or lack thereof, of the terms judicial activism and strict construction in his latest entry in the Legal Theory Lexicon. (Those of you studying Perspectives and Reg State, I highly recommend the whole series.) In turn, T. Moore over at Ex Post argues that activism isn't wholly useless as a term.
Prof. Solum is going to be here at Columbia today, and just like last year, I'm going to have to miss his lecture. Given that he was one of the people who helped me when this blog was young, I feel lousy about the fact that I've never been able to hear him when he's been in New York.
Comments
Don't forget Cass Sunstein's eminently workable distinction: Courts are activist when they overrule precedents or strike down statutes as unconstitutional. Imperfect, but pretty useful to carry around in your pocket.
zctsdPosted by: Tony the Pony | April 5, 2005 10:43 PM
I don't really understand why anyone who believes in judicial review would want to call striking down statutes activist. I'm not even sure I grant that overruling precedents is properly "activist", unless "activism" is simply taken to be a neutral term (as opposed to a claim that a judge is violating some proper notion of judical restraint).
Since most of us who advocate for judicial restraint (pace Jeremy Waldron) do believe in judicial review, I think we would have to be committed to the notion that the failure to strike down inalid laws or policies is every bit as activist as the choice to strike down valid ones.
bghkPosted by: Fr. Bill | April 6, 2005 01:48 PM
It's easier to think about it coming from a democratic perspective. If you assume that every law passed represents the will of the people, it's easy to get at least an idea of what "activism" on the bench would be.
But yeah, the reason for couching it thus is to get a neutral term.
Posted by: Tony the Pony | April 11, 2005 03:36 PM