In a recent piece here at The Mitrailleuse, Robert Mariani writes the following crucial sentences:

“Words are useful insofar as they have publicly agreed upon definitions. From definitions, we can have discourse that leads to some sort of useful truth.”

Amen to that.

At the Heritage Foundation’s recent Conservative Policy Summit Senator Rand Paul made the case that conservatives should abandon their preference for “judicial restraint” and embrace a more “activist” Supreme Court. George Washington University Law professor Orin Kerr helpfully attempted to delineate the different meanings people ascribe to the loaded term “judicial activism” a few years ago. He conjures up five distinct possibilities. So what, exactly, does Dr. Paul mean when he implores conservatives to think twice about restrained courts? What definition is he operating on?

First, let me humbly offer mine.

I propose that the charge of judicial activism can be levied wherever judges operate outside of their proper job description. If courts exist to know, interpret, and apply law, then any decision not resulting strictly from a process of interpretation involving general good will toward getting that interpretation correct is an “activist” decision. This does not mean any decision passed under the guise of subjective interpretation counts as whole and good, rather that interpretation had to be deliberated in good faith and free of inappropriate influences.

This may be labeled a procedural definition of activism as opposed to one that focuses on outcome. Professor Kerr offers that a decision itself (to strike down or leave intact a law), its implications for the scope of judicial power, its consistency with precedents, and its subjective accuracy (right/wrong) are all potential reasons people see a ruling as activist. These are outcome-based definitions as they focus on how the decision and its contingent effects help define restraint or activism, and I ultimately see Kerr’s lone remaining explanation (“the decision was motivated by the Justices’ personal policy preferences or was result-oriented.”) as the closest to a true procedural characteristic. 

Outcome-based definitions are inadequate in my view because we require information on how that verdict was reached. Seeing if a decision passes some static test is not enough. Court deliberation is a process and it is here that dubious motivations enter, not after the fact. Noting that a court decision cut against precedent tells us nothing of why it did so and it does nothing to illuminate the purity of intent, or lack thereof, of those deciding. (Admittedly it is in this view of activism as ignoring precedent where my narrow focus on process is most likely to falter, as one may view the application of previous law, regardless of subjective opinion, as part of a court’s “job description” I invoke above.)

It is true that an outcome-oriented definition may simply function as a signaling device for the process itself. For example, if the decision expands judicial power we may condemn it because we infer perverse reasons for why it was reached. But this would only mean these activist definitions collapse into a proper procedural view, however helpful they may be on their own.

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