« The Next Novel | Main | Sims Über Alles »

July 9, 2006

The Myth of Judicial Activism

I
n October, I have an academic book coming out. It's called The Myth of Judicial Activism, and it's an attempt to find a more useful way to talk about good and bad Supreme Court decisions, or appropriate and inappropriate judicial behavior. I was inspired to write the book by two things: the astonishing overuse of the epithet "judicial activism" in political rhetoric, and the fact that some people of good faith actually seem to believe the epithet has meaningful substantive content. To concretize it, you could say that the book is a response to Men In Black, a wildly incoherent attack on the Supreme Court that spent several weeks on the New York Times bestseller list. I was disturbed by the idea that people's thinking about the Supreme Court would be influenced by such a book, so I set out to offer an alternative.

What I came up with is, I think, a fairly useful way of evaluating Supreme Court decisions. It won't work for every case, and it doesn't do a great job of telling you whether decisions are right or wrong. But I think it does do a pretty good job of identifying cases in which the Supreme Court could fairly be charged with abusing its power and imposing its views on the representative branches of government--what I call illegitimate decisions. And I hope it's simple enough to be one that non-lawyers can in fact use.

The methodology is this. First, ask whether the Court is deferring to the other government actor whose action it's reviewing--Congress, or the President, or some state body. Second, ask what reasons can be put forth for or against deference. These reasons would be things like a greater or lesser ability to get the right answer to a particular relevant question (e.g., does this activity in the aggregate substantially affect interstate commerce), or a reason to doubt that the government actor will decide the question objectively or in good faith, or a history of behavior that demonstrates trustworthiness or untrustworthiness.

These are questions that are pretty easy to answer, and they can be answered with a reasonable degree of objectivity. Then, to decide whether the decision is legitimate or not, you just ask whether there are reasons that support the deferential or nondeferential stance the Court has taken. The upshot of this is that most decisions are legitimate. But the approach does identify some decisions in which it seems very hard to explain why the Court has adopted the posture it has, and it also allows us to compare decisions where the Court has taken different postures when faced with the same array of reasons. Tomorrow I will discuss some of those decisions.

Posted by at July 9, 2006 8:21 PM

Trackback Pings

TrackBack URL for this entry:
http://www.isthatlegal.org/cgi-bin/mt33/mt-tb.cgi/758.

Comments

I have a few questions about the methodology, ( which will probably be answered by the concrete examples, but hey, this is the internet :)

What is the formal definition of an illegitimate decision used in the book?

In the post above an illegitmate decision is defined as one in which

the Supreme Court could fairly be charged with abusing its power and imposing its views on the representative branches of government

If this definition is complete, then it declares as not illegitimate any supreme court decision that upholds a government action (e.g. Korematsu).

The methodology summary would seem to imply that this is not the intent, but it's hard to be sure. I'm guessing that tomorrow's cases will include Wickard/Lopez/Raisch, which should make things clearer

Posted by: Simon Spero at July 10, 2006 3:57 PM