Randy Barnett on “Judicial Activism”

I’ve made no secret of my admiration for the legal scholarship of Randy Barnett of Boston University. About a year ago on my own blog, I quoted extensively from a post he wrote at the Volokh Conspiracy in response to a letter to the Wall Street Journal from Robert Bork and a post by Stephen Bainbridge. In light of recent discussions, I think it’s worth revisiting and reposting Barnett’s thoughts on the issue. He wrote:

Both posts beg the question: what exactly IS judicial activism? Unfortunately, apart from his reference to “democratic values,” Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony?

Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in the Tempting of America?

Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

Barnett then goes on to discuss the elusive definition of “judicial activism” that I have harped on, perhaps to the point of saturation for some. But the accusation is so pervasive in political and legal discussion, at least among what I call the “pedestrian right”, that it simply has to be addressed and it must be pointed out, often and loudly, that the emperor has no clothes:

Judicial “activism,” as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of “activism,” we just do not know exactly why Professor Bainbridge is offended. No doubt he has a sophisticated view of this issue or he would not be casting stones, but merely invoking “democratic values” will hardly suffice.

Either striking down ANY properly enacted statute is “activism” because it thwarts the “will” of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of “the Judicial Power” in Article III. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet “activism” to avoid messy issues like determining the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague “process” impropriety called activism.

Or as Peter Gomes put it in the Boston Globe early last year, “judicial tyranny” is “a phrase usually heard from those whose prejudices have not been sustained by a court’s decision.”