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Re-playing the Old Argument About Activist Judges

By Jack M. Balkin

With just a month to go, conservatives are finally deploying their favorite election scare tactic: vote Republican because Democratic presidents appoint activist judges.

This argument is wrong on many levels. If "activism" means a propensity to invalidate legislation, Justices Scalia and Thomas have voted in favor of striking legislation at almost double the rate of liberal Justices. If "activism" means discarding or altering precedent (whether explicitly or implicitly), the conservative dominated Supreme Court has done so lately with a startling lack of restraint. If "activism" means injecting political views into judicial interpretation, it is absurd to suggest that the recent votes of conservative Justices are not predictable on political grounds.

Conservatives aggressively seek the appointment of conservative judges with the explicit goal of entrenching a conservative bent into the law through judicial interpretation informed by conservative political views. If advancing the conservative political agenda requires that judges strike legislation or deviate from precedent, in their view, that's just fine.

This old election tactic--running against activist judges--is also absurd when one considers that the current Supreme Court, and the federal bench generally, is overwhelmingly dominated by appointees of Republican Presidents (Reagan, Bush I, Bush II). Anyone unhappy with judges--and how many people are that unhappy?--will know where to place responsibility.

There is more to say about why this argument is wrong, but it all seems beside the point. As the economy melts down, as one war we are fighting goes south while another voraciously sucks resources--as young Americans are killed and wounded--a campaign that focuses on the supposed threat posed by activist judges will merely demonstrate how out of touch and desperate it is.

People are not as stupid as these Rovian campaign consultants seem to think. So keep running those ads.

Addendum: In response to this post, Orin Kerr notified me of a study (described here) which shows that conservative justices strike federal statutes at double the rate of liberal justices, while the reverse is true with respect to state statutes. When state and federal numbers are combined, conservative and liberal justices invalidate legislation at similar rates. That's interesting! (And it should prompt us to rethink what the Supreme Court is about). But it does not detract from the thrust of the post: that it is wrong to assert (as conservative ads do) that Democratic judicial appointees are "activists," whereas Republican appointees are not.

Full post as published by Balkinization on October 06, 2008 (boomark / email).