Scott Adams
Scott Adams campaign leader

At the outset, let me summarize my thoughts on this subject, then discuss it in somewhat more detail. There can be no question that judicial activism, as just described, has been a problem in our legal system for some time. The power of the judiciary under our Constitution to declare the law and decide cases under that law is awesome; when abused, that power is too often beyond reach. At the same time, I believe that many of those who have complained most often about judicial activism have overstated and misstated the problem, thus distracting us from the real issue—legislative activism on the part of Congress, which leads to judicial activism.

Overstating the problem. Many of the examples of “judicial activism” that are cited turn out, when examined more closely, not to be cases in which the judge failed to apply the law but applied the law differently, or applied different law, to reach a result different than the result thought correct by the person charging activism. To be sure, there is no bright line between failing to apply the law and wrongly applying the law or applying the wrong law, but when that distinction is drawn, it turns out that there are fewer cases of true judicial activism than at first may appear.

Misstating the problem. More importantly, the problem of “judicial activism” is seriously misstated when it is cast, as it often is, as involving judges overruling the will of the people. In our legal system, judicial review often requires a judge to do just that. In such a case, were the judge to defer to the political will, exercising “judicial restraint” when the law requires active judicial intercession, that restraint would itself be a kind of activism, for it would amount to an “active” failure to apply the law in deference to democratic or majoritarian values. The judge in such circumstances would be shirking his judicial responsibilities every bit as much as if he overrode a legitimate exercise of political will in the name of other values.

Thus, as terms of art, judicial “activism” and “restraint” can be quite confusing and even misleading. What is more, they are often used in ways that camouflage the real issues. What we all want, I assume, is judges who are neither “active” nor “restrained” but “responsible”—responsible to the law. But when the law is unclear or inconsistent, judicial responsibility may be difficult to achieve—and “activism” inevitable. In the end, therefore, our substantive law may be the ultimate source of the problem before us today. That, in fact, is what I will argue shortly. Let me begin, however, with a brief overview of the complaints. [1]

Cato Institute

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