Interring the Rhetoric of Judicial Activism

For decades, leaders of the Republican Party have decried “judicial activism” and championed “judicial restraint.” For much of that time, Republican politicians have equated judicial restraint with a commitment to judicial deference, asserting that “activist” judges disrespect the will of popular majorities. More recently, as the Republican Party has solidified its control of the federal courts and made its own claims on the Constitution, Republican politicians have tended to define judicial activism in potentially conflicting ways, mixing deference frames with claims about the autonomy of law from mere politics or personal beliefs. In this Article, I examine these two ways of understanding the Republican rhetoric of judicial activism, and I show that each of them is problematic. First, equating judicial activism with the refusal to show deference to elected officials is inconsistent with much of modern Republican politics and with the views of the four U.S. Supreme Court Justices who are most admired in Republican political circles—Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, Jr. Second, redefining judicial activism as a scarlet letter for judges who follow their personal beliefs instead of “the law” invites charges of hypocrisy for switching definitions, and presupposes an unsustainably sharp distinction between constitutional politics and constitutional law—as evidenced by the close correspondence between personal views and legal views among the very people who assert an antinomy between the two. In short, I argue that Republican rhetoric about judges either rests on a defensible definition of judicial activism that is nonetheless contrary to actual Republican practice, or else rests on an indefensible definition of judicial activism because it mischaracterizes the actual practice of constitutional adjudication in the United States. My analysis suggests that the rhetoric of judicial activism is deployed to condemn particular views on particular issues and not to express a genuine commitment to judicial deference or to the ideal of fidelity to law