We Need Judicial Activism

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 brief history of human dignity

What is human dignity? Here's a primer, told through 200 years of great essays, lectures, and novels.

Credit: Benjavisa Ruangvaree / AdobeStock
Sponsored by the Institute for Humane Studies
  • Human dignity means that each of our lives have an unimpeachable value simply because we are human, and therefore we are deserving of a baseline level of respect.
  • That baseline requires more than the absence of violence, discrimination, and authoritarianism. It means giving individuals the freedom to pursue their own happiness and purpose.
  • We look at incredible writings from the last 200 years that illustrate the push for human dignity in regards to slavery, equality, communism, free speech and education.
Keep reading Show less

Astrophysicists: Gamma-ray jets exceed the speed of light

Scientists find that bursts of gamma rays may exceed the speed of light and cause time-reversibility.

An artist's drawing of a particle jet emanating from a black hole at the center of a blazar.

Credit: DESY, Science Communication Lab (used with permission by Astronomy Picture of the Day, which is co-managed by Robert Nemiroff at Michigan Tech).
Surprising Science
  • Astrophysicists propose that gamma-ray bursts may exceed the speed of light.
  • The superluminal jets may also be responsible for time-reversibility.
  • The finding doesn't go against Einstein's theory because this effect happens in the jet medium not a vacuum.
Keep reading Show less

​'The time is now' for cryptocurrencies, PayPal CEO says

Is Bitcoin akin to 'digital gold'?

Technology & Innovation
  • In October, PayPal announced that it would begin allowing users to buy, sell, and hold cryptocurrencies.
  • Other major fintech companies—Square, Fidelity, SoFi—have also recently begun investing heavily in cryptocurrencies.
  • While prices are volatile, many investors believe cryptocurrencies are a relatively safe bet because blockchain technology will prove itself over the long term.
Keep reading Show less

Study suggests most "dark web" users are not engaging in illicit activities

A new study finds that some people just want privacy.

Photo by Soumil Kumar from Pexels
Technology & Innovation
  • Despite its reputation as a tool for criminals, only a small percentage of Tor users were actually going to the dark web.
  • The rate was higher in free countries and lower in countries with censored internet access.
  • The findings are controversial, and may be limited by their methodology to be general assumptions.
Keep reading Show less
Scroll down to load more…