Taking Lessons from the Left?: Judicial Activism on the Right

The topic I would like to address in this essay is the subject of conservative judicial activism. Dismayed at the boldness of the Rehnquist Court\u27s conservative majority in areas such as affirmative action and race-based redistricting, federalism, takings law, and my own field of constitutional criminal procedure, critics have accused the Court of being activist. These attacks have become almost ubiquitous now, to the point that it is increasingly difficult to find any area of the Rehnquist Court\u27s jurisprudence that has not been condemned as activist. Perhaps this is not surprising; the term activism packs a powerful rhetorical punch, especially when applied to conservative judges, whose self-image is that of legal technicians interpreting and applying—not making —the law. What is surprising, however, is how sharp and often vituperative the accusations of conservative judicial activism usually are. Without at least some common ground on the proper role of judges—as I think can be captured in a careful, ideologically balanced approach to defining activism —we run the risk that scholarly discourse will degenerate, as it already has to some extent, into insoluble disputes over methods of constitutional interpretation or policy considerations. Therefore, the quest for a shared understanding about what constitutes activism, one that is as distinct as possible from the propriety of particular methods of constitutional interpretation, may be our last, best hope for reaching some degree of consensus concerning what judges may properly do in discharging their important constitutional functions in a democratic society. The hard part, of course, is coming up with a neutral definition of activism. In the remainder of this essay, I grapple with this difficult issue. Specifically, I discuss various proposed definitions of activism, organized into somewhat arbitrary but nonetheless useful categories of models of activism. I conclude that none of the existing models, standing alone, provides a reliable measuring stick for evaluating the propriety of particular exercises of judicial power, although each does provide insights essential to a realistic understanding of activism. What is needed instead, I believe, is a multi-factored approach drawing on each of the individual models of activism