Proponents of the first approach might try to resurrect the term and excise its impotent emotive meaning by appealing to a theory of constitutional adjudication. These scholars might then appeal to such a theory when reconstructing a revivified conception of “judicial activism.” Dworkin’s moral reading of the Constitution and Bork’s originalism are good examples of theories that can help bring “judicial activism” back to life as a useful analytic term. However, neither of these theories—nor any other—is compelling. Hence, in the absence of anything resembling consensus on the term’s general meaning its analytic potency remains moribund. One possible move at this stage is to abandon the term entirely as some theorists contend we should do concerning “God,” “the people,” “mind,” “the analytic-synthetic distinction,” “the myth of the given,” “the planet Pluto,” and a host of other terms whose explanatory utility has waned.
Lori Ringhand adopts a second approach. She aims at salvaging the term “judicial activism” by defining it in such a manner—counting how many times justices strike down laws and overturn precedents—that lends itself to behavioral verification. Lori’s approach is elegant, with no frills attached, and pursues “objective” results. In the final analysis, however, we should be wary of this approach simply because it replaces the conceptual framework of constitutional law and theory with the conceptual framework of social science. Instead of using “judicial activism” to play a role in answering such questions as whether justices willfully ignore the Constitution; or whether the Court should adopt different standards of judicial scrutiny in different areas of constitutional law; or do certain interpretive methodologies restrain justices better than others, the term now applies to quantifiable behavior sans specifying the constitutional reasons for that behavior. Without such reasons the behavior seems to have nothing to do with constitutional law and theory. How would Lori’s definition of “judicial activism” be related to the so-called countermajoritarian problem? Or to questions of how vigilantly the Court should protect individual rights? Or when should a justice strike down a law or overrule precedent? These questions of constitutional theory rely on jurisprudence and political philosophy. Lori’s definition is unrelated to both. Her “judicial activism” can be measured to be sure. But at what price? The price is costly and requires nothing less than changing the subject of inquiry from constitutionalism to a faceless behaviorism.
We can, of course, stipulate any meaning at all to “judicial activism.” We could even define it as the number of questions justices ask during oral argument. Justice Thomas’s adjudicative commitments would then be paradigmatic of restrained adjudication. Justice Thomas may be committed to judicial restraint in some interesting sense, but certainly not because he seldom asks questions during oral argument. Stipulative definitions must make sense in terms of a justice’s reason for her decision not just the fact that she made a decision. If not, it is unclear how presenting such a stipulated definition of “judicial activism,” is relevant to the jurisprudence of American constitutionalism at all.
Additionally, how does one argue against Lori’s definition in behavioral terms without appealing to the jurisprudential concepts in the constitutional framework? Lori’s approach has no apparent relevance to the initial step in stipulating the meaning of “judicial activism.” Yet, to have utility, Lori’s behavioral analysis depends first on getting the definition of “judicial activism” right—reasonable, intuitively plausible, or conceptually illuminating, take your pick—and that cannot be done without jurisprudence and political philosophy. If so, then just those non-objective factors Lori wants to excise will reappear in her choice of definition. Lori might reply that we haven't been able to achieve consensus about the definition of “judicial activism” in the first place. That is why we should turn to social science. But if ”judicial activism” is irredeemable within the framework of constitutional law and theory, let's just drop the term rather than change the subject.
Further, to return to a theme in an earlier post, what if one believes, as I do, that upholding laws can be as activist as striking them down. Consider the Slaughterhouse Cases. The Court dealt a virtual death blow to the privileges or immunities clause by giving it an extraordinarily narrow definition, arguably rewriting the text of the Fourteenth Amendment. If so, upholding the law in this case clearly involves constitutional revisionism and therefore judicial activism. Further, Plessy, Korematsu, and other cases are examples of judicial activism, in my view, because the Court in these cases conspicuously failed to come up with the right answers when right answers were clearly available. Instead, in each case, the Court abdicated its responsibility by deferring to legislative authority and, therefore failed, according to what some believe to be the Court’s raison d’etre, as the guardian of the Constitution and the protector of individual rights. And a justice is certainly not restrained in upholding unconstitutional laws of great moment when a compelling or even a plausible argument existed to strike that law down. To borrow crudely from Barry Goldwater, upholding unconstitutional laws is no virtue and striking down unconstitutional laws is no vice. It is true, of course, that consensus might elude us in general, but that doesn’t preclude insisting that if, according to our current constitutional meanings, the laws in Plessy and Korematsu clearly should have been struck down, then the Court’s decision to uphold them was an egregious failure, and calling such a failure “judicial activism” is intuitively more appropriate than defining “judicial activism” behaviorally. Moreover, upholding the law in Plessy, licenses the expansion of segregation, and then this license becomes a central part of the constitutional meaning of equal protection. Hence, sanctifying the unconstitutionality of such a law has serious consequences throughout constitutional culture. How can we avoid calling this “judicial activism”?
Putting aside the question of whether maintaining the constitutional status quo should count in a behavioral analysis of judicial activism, it is unclear how we can reduce, in full or in part, one conceptual framework to another while preserving the importance of the former. It is conceivable, I suppose, that Lori’s framework can abruptly replace the present constitutional framework in a Kuhnian-like revolution washing away the old questions about judicial supremacy and constitutional democracy and replacing them with behavioral questions and analyses throughout. But that is highly unlikely and I’m pretty sure it is not Lori’s agenda. Hence, we must choose between conceptual frameworks—jurisprudence versus social science—and this requires determining which framework is better at explaining constitutional adjudication and the development of constitutional law.