Nexus: Chapman's Journal of Law and Public Policy

Judicial activism has become a universal pejorative, a rare point of agreement between red and blue America, as conservatives and liberals alike condemn courts for overturning policy decisions (which they usually support). Clint Bolick, a senior fellow at the Goldwater Institute in Phoenix and advocate of judicial activism, argues that these individuals would reduce the judiciary's constitutional scrutiny of the actions of other branches of government--a role that is exercised not too much but far too little. He does agree that courts deserve criticism when they exercise legislative or executive powers, for example, ordering taxes to be raised, assuming control over school systems or prisons or giving regulatory agencies broad lawmaking authority. But he thinks that it is better to call this behavior as it is--not "activism" but lawlessness. Mr. Bolick defines judicial activism akin to judicial review (hence “revactivism”)--the power of courts to invalidate unconstitutional laws and to hold the president, congress, and state and local governments to their constitutional boundaries. Clearly, this was vital to the scheme of republican government established by our Constitution and is essential to protecting individual liberty and the rule of law. However, opponents of judicial activism generally define it as judicial overreaching whereby judges allow their personal views about public policy to guide their decisions and are willing to ignore precedent.

Conservatives have long attacked judicial activism, but recently liberals have joined the team. Liberal critics cite statistics showing that the Supreme Court under Chief Justice William Rehnquist was more “activist” in invalidating federal laws than any of its predecessors in areas such as private property rights, equal protection, commerce and federalism. Mr. Bolick argues, on the other hand, the number of decisions striking down executive and legislative actions pales in comparison to the growth of federal laws and regulations during the same period. He found that it took 169 years from the founding for the federal code of laws to reach 11,472 pages and only four decades more for that number to quadruple. In 1960, the Code of Federal Regulations numbered 22,000 pages; today that number has grown by more than 700%.

Advocates of judicial deference claim that courts are ill-equipped to second-guess legislative determinations. However, Mr. Bolick contends that courts that merely rubber-stamp legislation or executive branch decisions out of bland, or blind, "deference" evade their essential constitutional role. Judges engaging in judicial “revactivism” carefully sift through competing evidence presented by both sides in order to reach their decision, and properly wielded, Mr. Bolick suggests “a court gavel can be David's hammer against the Goliath of big government…[a]mong our governmental institutions, courts alone are designed to protect the individual against the tyranny of the majority and against special interest groups with outsized influence.”

Finally, Mr. Bolick implores that we as citizens must understand that as government inexorably expands, our freedom depends on the willingness of courts to rein in its excesses as they are the last line of defense against government running roughshod over individual liberty. He also urges judges, upon their pledge of loyalty to the constitution, to be mindful of the danger of exceeding the proper confines of judicial power (which is not “activism”), but as well the even greater danger of abdicating it.