We Need Judicial Activism

Now that SCOTUS deliberation over the constitutionality of portions of Obamacare is going much worse than most liberals predicted, left-leaning pundits are screaming "judicial activism!" which is cute, though I understand the frustration. As Scott Lemieux reminded David Frum:


[C]onservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice.

And this should not be surprising. As a practical matter, to refuse to rule in an "activist" fashion is to defer slavishly to precedent, whatever it might be, whether one believes precedent was based on "activist" reinterpretation or ignorance or error. Even then, interpretation of the implications of relevant precedent requires an interpretative framework. The least "activist" interpretative framework would be one in which judges attempt to interpret the relevant body of law as closely as possible to the intentions of the proximate lawmakers, whether they be legislators or other judges. Nobody does this. And why would they? It's stupidly arbitrary. What if the intention behind prior rulings was ignorant, or perniciously ideological, or harmful?

Were we to make slavish deference to precedent universal law, ala Kant, we'd end up with what a sort of path-dependent judicial drift--tiny but unavoidable interpretative mutations piling up until the law ends up in places no one finds desirable. Interpretative frameworks that push the law toward substantive ideals save us somewhat from the problem of arbitrary, path-dependent drift. But they create another kind of arbitrary drift, as rival frameworks push the interpretation of the laws in incompatible directions. This can, again, leave us in stupid places no one ever had in mind. The only rescue is the occasional "activist" saltative leap that either ignores or radically reinterprets precedent in order to restore to the law the coherence of principle, for a while at least.

"Originalism" is not a non-activist interpretative framework. An "originalist" framework applied to the interpretation of non-originalist precedent predictably generates "activist" decisions. That is why, as I've argued before, originalism is just one among many philosophies of the "living constitution", and does not differ in fundamental method from the progressive "second-bill-of-rights" philosophy, which attempts to reinterpret the law such that over time the accumulation of progressive precedent codifies certain basic rights unfortunately omitted from our antique constitution. Both philosophies seek to rewrite the law, as it now stands, better to conform to some external ideal. Originalists seem to think their ideal has more legitimacy than the judicial New Dealers because today's law bears an imagined evolutionary relationship to the thing they have in mind. The orginalist argument is somewhat like the argument that although men now wear baseball caps instead of fedoras, they should begin wearing fedoras because they used to wear them. But that is not actually a good reason to wear a fedora instead of a cap.

Anyway, if you're going to have a written constitution with strong judicial review, there's just no way around judges deciding some cases according to their personal ideological preferences, which is why everybody cares so much about the partisan affiliation of the guy who gets to nominate people to the SCOTUS. Norms of deference to precedent and legislative intent, which limit just how activist courts can be in practice, are healthy. But every now and then court majorities are going to spend down their fund of legitimacy in "activist" efforts to impose/block what they see as good/bad policy or establish/block what they see as a good/bad precedent, and this isn't at all a bad thing.

A still from the film "We Became Fragments" by Luisa Conlon , Lacy Roberts and Hanna Miller, part of the Global Oneness Project library.

Photo: Luisa Conlon , Lacy Roberts and Hanna Miller / Global Oneness Project
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It looks like a busy hurricane season ahead. Probably.

Image source: Shashank Sahay/unsplash
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  • Before the hurricane season even started in 2020, Arthur and Bertha had already blown through, and Cristobal may be brewing right now.
  • Weather forecasters see signs of a rough season ahead, with just a couple of reasons why maybe not.
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Welcome to Hurricane Season 2020. 2020, of course, scoffs at this calendric event much as it has everything else that's normal — meteorologists have already used up the year's A and B storm names before we even got here. And while early storms don't necessarily mean a bruising season ahead, forecasters expect an active season this year. Maybe storms will blow away the murder hornets and 13-year locusts we had planned.

NOAA expects a busy season

According to NOAA's Climate Prediction Center, an agency of the National Weather Service, there's a 60 percent chance that we're embarking upon a season with more storms than normal. There does, however, remain a 30 percent it'll be normal. Better than usual? Unlikely: Just a 10 percent chance.

Where a normal hurricane season has an average of 12 named storms, 6 of which become hurricanes and 3 of which are major hurricanes, the Climate Prediction Center reckons we're on track for 13 to 29 storms, 6 to 10 of which will become hurricanes, and 3 to 6 of these will be category 3, 4, or 5, packing winds of 111 mph or higher.

What has forecasters concerned are two factors in particular.

This year's El Niño ("Little Boy") looks to be more of a La Niña ("Little Girl"). The two conditions are part of what's called the El Niño-Southern Oscillation (ENSO) cycle, which describes temperature fluctuations between the ocean and atmosphere in the east-central Equatorial Pacific. With an El Niño, waters in the Pacific are unusually warm, whereas a La Niña means unusually cool waters. NOAA says that an El Niño can suppress hurricane formation in the Atlantic, and this year that mitigating effect is unlikely to be present.

Second, current conditions in the Atlantic and Caribbean suggest a fertile hurricane environment:

  • The ocean there is warmer than usual.
  • There's reduced vertical wind shear.
  • Atlantic tropical trade winds are weak.
  • There have been strong West African monsoons this year.

Here's NOAA's video laying out their forecast:

But wait.

ArsTechnica spoke to hurricane scientist Phil Klotzbach, who agrees generally with NOAA, saying, "All in all, signs are certainly pointing towards an active season." Still, he notes a couple of signals that contradict that worrying outlook.

First off, Klotzbach notes that the surest sign of a rough hurricane season is when its earliest storms form in the deep tropics south of 25°N and east of the Lesser Antilles. "When you get storm formations here prior to June 1, it's typically a harbinger of an extremely active season." Fortunately, this year's hurricanes Arthur and Bertha, as well as the maybe-imminent Cristobal, formed outside this region. So there's that.

Second, Klotzbach notes that the correlation between early storm activity and a season's number of storms and intensities, is actually slightly negative. So while statistical connections aren't strongly predictive, there's at least some reason to think these early storms may augur an easy season ahead.

Image source: NOAA

Batten down the hatches early

If 2020's taught us anything, it's how to juggle multiple crises at once, and layering an active hurricane season on top of SARS-CoV-2 — not to mention everything else — poses a special challenge. Warns Treasury Secretary Wilbur Ross, "As Americans focus their attention on a safe and healthy reopening of our country, it remains critically important that we also remember to make the necessary preparations for the upcoming hurricane season." If, as many medical experts expect, we're forced back into quarantine by additional coronavirus waves, the oceanic waves slamming against our shores will best be met by storm preparations put in place in a less last-minute fashion than usual.

Ross adds, "Just as in years past, NOAA experts will stay ahead of developing hurricanes and tropical storms and provide the forecasts and warnings we depend on to stay safe."

Let's hope this, at least, can be counted on in this crazy year.

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