Consider This a Warning: Judicial Activism & Judicial Engagement

Thomas Warns*

The New York Post recently printed an opinion piece by Clark Neily, a senior attorney at the Institute for Justice. In it, Neily challenged some assumptions that are largely taken for granted as true:

“Americans are constantly being told that a major problem with our courts today is ‘judicial activism,’ which is often defined as courts wrongfully interfering with the other branches of government and blocking popularly enacted laws.

But a far more serious problem is judicial abdication: the persistent failure to fully enforce constitutional limits on government power.

Between 1954 and 2002, Congress passed 15,817 laws. Of those, the Supreme Court struck down 103 — just two-thirds of 1%. Of the more than 1 million state laws passed during that same time period, the Court struck down 452; less than 1/20th of 1%. In any given year, the Supreme Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.”

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."        While conservatives often bemoan judicial activism when a law is overturned, some fire back that the Roberts court is just as guilty of judicial activism as any other court. In reality, finding out when personal views on public policy influence a judicial decision can be difficult, often making the working definition of “judicial activism” much simpler: it is a decision one doesn’t like.


An illustrative example is the 2010 Supreme Court decision in Citizen United: if you hate the decision, it is judicial activism at its worst because it overturns a Congressional limitation on corporate campaign spending; like it, and it is an important decision that upholds constitutionally protected First Amendment rights.


Perhaps it is time we clarify what we mean when we use the term judicial activism. Conservatives often blame judicial activism when democratic laws are overturned or when new rights are enforced that they do not believe to exist within the text of the Constitution. But shouldn’t we also view judicial activism as a failure to enforce constitutional protections?

Clark Neily points disapprovingly to the 2005 eminent domain case out of New London in which Justice Stevens wrote a 5-4 decision that subverted the meaning of the eminent domain clause of the constitution (Neily’s Institute for Justice represented the losing side in that case). In Kelo, the Court ruled that the Fifth Amendment, which states "private property [shall not] be taken for public use, without just compensation,” was not violated by a plan that involved seizing private land in order to sell to developers. The permissible public purpose was the incidental benefits of economic development that would flow from the planned project (adding insult to injury, the project was never completed). Some could argue the decision was an exercise of judicial modesty or restraint because it declined to scrap a law that they did not believe was obviously unconstitutional.

Clark Neily writes that this sort of decision, a failure to enforce constitutional rights, is judicial abrogation; Justice Scalia squarely called it one of a “few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance.” If we are faithful to the Black’s Law dictionary definition of judicial activism, then the Kelo decision is an egregious example of judicial activism even though they did not overturn or block a move from a duly elected local legislature. The Courts are bound to enforce the Constitution, and any failure by sophisticated judges to enforce Constitutional rights for policy reasons is judicial activism, regardless of whether the decision affirms a law, invalidates a law, or is a decision we “like.” Thus, even if we reflexively dislike judicial interference into the other branches, we should encourage more of the decisions that Neily styles “judicial engagement,” because the wolf can hide in plain sight as judicial modesty or judicial activism.

*Thomas Warns is a J.D. Candidate, class of 2015, at New York University School of Law and Staff Editor of the Journal of Law & Liberty. Mr. Warns is the author of the weekly column "Consider This a Warning."