I have been thinking a lot lately about Judge Walker’s ruling in California striking down Proposition 8, and Judge Bolton’s ruling on Arizona’s immigration law. The most obvious response is that these rulings, and the reactions of those who oppose them, lay bare the silliness of the modern debate over judicial activism. According to their critics, these rulings are exercises in judicial activism by liberal judges hell-bent on destroying everything we hold dear; yet recent rulings on gun rights, campaign finance, and race, to name a few glaring examples, are exercises in judicial restraint and the faithful exercise of judicial responsibilities in enforcing our beloved Constitution.
This is bunk, obviously; Justice Scalia is no less an activist judge than Justice Marshall. They just happened to care about different things. This is true under any definition of activism you can think of, from the invalidation of statutes to the creative and dynamic interpretation of federal laws to the active use of the avoidance canon. If you need support for this, take a look at the Supreme Court’s most recent pronouncement about the Voting Rights Act, Namudno v. Holder. Rather than rule on the constitutionality of the Act, as most observers expected, the Court, in an opinion authored by Chief Justice Roberts, “avoided” the constitutional question. It did so by essentially rewriting the statute to say something the text clearly did not say. In the coming years, the Court is similarly poised to strike down the special provisions of the Act. As I have written elsewhere, this is “activism on steroids.”
To focus on the concept of activism is thus to focus on the wrong target. This is to focus on politics, not law, and to render criticisms of judicial rulings as questions of whose ox is being gored. No shame in that, of course, but hopelessly unhelpful.
Instead, we should focus on the fact that judges are strategic actors, particularly those who sit at the top of the judicial hierarchy. This is to say, the justices of the U.S. Supreme Court have policy preferences, which are reflected as best as possible in their rulings and votes from the bench. This is true of all the justices, not only the liberal ones. The moment we come to accept this truism, the better off we will be.
Right off the bat, I can think of one big improvement on our politics: we won’t have to listen to Senator Sesssions pontificate about the dangers of judicial activism.