ACSBlog: The Blog of the American Constitution Society

In a speech yesterday, President Bush described so-called "activist judges" as engaging in "judicial lawlessness," interpreting the Constitution to "mean whatever those activists want it to mean". In an issue brief released by ACS, William P. Marshall, professor of law at the University of North Carolina School of Law, addressed claims that "activist judges" step beyond their constitutional role.

[O]ne of the interesting features of the conservatives’ judicial activism attack is how their use of the term has changed depending upon political exigency. Originally, conservatives defined judicial activism as the failure of the courts to defer to the decisions of elected officials; i.e. being counter-majoritarian. This definition, however, proved unsatisfactory after Republican presidents succeeded in appointing movement conservative justices and judges to the federal courts. At that point, the federal judiciary, now in conservative control, began striking down federal legislation at a record pace. In such circumstances, the principle of deference to elected officials began to fall by the wayside as the mainstay of the non-activist judge. No longer was counter-majoritarianism to be considered the hallmark of judicial activism. . . .   

For similar reasons, the conservatives abandoned their previous claims that judicial activism was defined in part by failure to adhere to judicial precedent. The conservatives themselves were too busy trying to overturn precedents in order to be able to sustain this attack. Indeed, since much of the central thrust of the conservative agenda has been overruling cases such as Roe v. Wade and Lemon v. Kurtzman, any effort by them to decry overturning precedent as judicial activism would have been particularly ill advised. . . .

The real test of activism, according to the conservatives, (at least as they now state their case) is whether a judge properly adheres to principles of originalism. Actually, of course, originalism as a method of constitutional interpretation of course has its problems. . . .

[O]riginalism, even with its jurisprudential flaws, has become the conservative mantra. And occasionally, they actually follow it. . . . But the overall conservative record on this score is more complex, and the only true rule governing the conservative’s application of so-called originalism is that they will always apply it, no matter where it leads—except of course when they don’t. . . .

The rule is clear. Originalism is fine as long as it does not interfere with the conservatives’ political agenda. Or maybe better stated, the conservative mantra is that all non-originalism should be harshly condemned as judicial activism except when done in service of conservative goals. Originalism, in the conservatives’ hands, in short, is a doctrine only of convenience and not of principle.

The issue brief is available here.