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Judicial Engagement vs. “Judicial Activism” and “Judicial Restraint”

Discussions of judicial decision-making have long been dominated by charges of “judicial activism” and calls for “judicial restraint.” Today, both liberals and conservatives use the term “activism” as an epithet to disparage and discredit decisions with which they disagree, while calling for judicial “restraint” when they want majorities to get their way.

There are several serious problems with continuing to use the language of activism/restraint, including:

1. The language of activism/restraint carries too much ideological baggage.

Commentators of all ideological persuasions reference “judicial activism” when a government action that they agree with is struck down by a court’s decision. However, if such actions are upheld, commentators then praise the “judicial restraint” of the judges. As a result, accusations of activism and calls for restraint often come off as purely partisan reactions to a given result, motivated by ideology rather than any fair-minded assessment of the court decision or the quality of the analysis that produced it.

2. Charges of activism and demands for restraint encourage judges to defer to the political branches, resulting in the growth of government.

The Constitution places significant limits on and hurdles before government. Denigrating courts with the term “activist” and insisting that they defer to the supposed “democratic will” encourages judges to be unduly passive in the face of government overreach. All too often, judges fail to say “no” to government when the Constitution does.

Examples of this reflexive restraint include the 2005 decisions of Kelo v. City of New London, in which the U.S. Supreme Court virtually read the public use provision out of the Fifth Amendment by upholding the use of eminent domain for private economic development, and Gonzalez v. Raich, in which the Court held that Congress’ power to regulate commerce among the states extends to the wholly intrastate, noncommercial distribution of homegrown medical cannabis.

3. Charges of “activism” intimate bad faith and suggest—usually without explanation—that a given court decision is not wrong, but it is indefensibly and undeniably wrong. In fact, very few court decisions can be so easily or confidently dismissed.

Questions of constitutional interpretation are complex, and reasonable people can come to different conclusions without acting in bad faith. The term “activism,” however, suggests a deliberate decision to distort the Constitution. Few decisions warrant that charge.

If “activism” is used to refer to any incorrect constitutional interpretation, even if made in good faith, the term is not doing any work. Simply labeling a decision with which one disagrees “activist” doesn’t persuade anyone. It is always better—and more respectful—to explain why the decision is wrong on the merits. The process of explaining one’s position on a matter of constitutional interpretation—instead of relying on ad hominem attacks—frequently reveals that it is one about which reasonable people may disagree.

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