Friday, 16 May 2008

Defining judicial activism

My OTB co-blogger James Joyner considers the question of what constitutes “judicial activism” as part of the broader debate over California’s same-sex marriage decision yesterday. The admittedly imperfect definition I use—and, kids, this is the one that’s the right answer on my American government exams—is “a tendency for judges to oppose the will of other courts or branches of government.” Mind you, that activism has a long and proud history and not one confined to liberal justices either.

In the case of California, given that just a few years ago the people of that state, acting as its lawmaking body through its public initiative process pursuant to its constitution, decided to legally define marriage as involving one man and one woman, I think you can fairly characterize the California court’s ruling as “activist.” That doesn’t mean it’s the wrong ruling under the constitution and laws of that state, but it’s not deference to either the will of the people or the executive branch either.


Any views expressed in these comments are solely those of their authors; they do not reflect the views of the authors of Signifying Nothing, unless attributed to one of us.
[Permalink] 1. ppt.primer wrote @ Fri, 16 May 2008, 12:49 pm CDT:

And what is “the public will”?

I suggest an Intro to Positive Political Theory, not only for your benefit, but for that of your readers.


Well, we could drag Arrow’s Impossibility Theorem, the Condorcet Jury Theorem, the problem of incomplete voter information, and the whole dynamics of social choice functions into the discussion, but that really doesn’t help very much with providing a practical definition of “judicial activism”—particularly since the definition I used doesn’t really require any particular definition of the “public will,” just the express preferences of the executive, legislature (which, in California’s case, includes the people acting via the initiative power), or other judicial officers.

If we really want to go there, I think it’s reasonably clear that the Condorcet-winning preference of California voters (and voters in a lot of places in the country) would be for same-sex couples to have all the rights associated with opposite-sex couples but called something other than “marriage.” Ironically I believe that was essentially the public policy of California until yesterday morning, and is the public policy of a lot of the “enlightened” jurisdictions (Canada, Britain, and a number of countries in continental Europe) we are somehow inferior to by not all adopting Massachusetts’ and California’s highest courts’ preferred solution of calling both things “marriage.”

But that gets us back to a more fundamental question of whether courts should follow majority-winning preferences or some idealized notion of minority rights (which I think are the extreme positions of the debate) or something in-between, which I’m pretty sure is where positive theory hits its dead-end and we get into that icky normative territory where nobody can get tenure-track jobs.


I don’t think the phrase “judicial activism” has anything to do with whether the majority agrees or disagrees with the ruling. It has to do with whether the ruling in question is reasonably grounded in the laws the judges in question are purporting to interpret, or whether they primarily reflect the judges’ own personal views of what the law ought to be. If/when the substance of Prop 22 returns to the ballot, this time in the form of a constitutional amendment, we will find out whether the majority agrees with gay marriage or not. Even if they do, the ruling is no less “activist” in nature since they’re applying laws passed at a time when the lawmakers in question clearly did not.


It pains me to reiterate this, but the definition of “activism” noted in the original post says nothing about majorities—largely because I defined it in terms of the national judiciary, where national majorities don’t have the legal standing that citizens voting by referendum have in many states.

I think my bottom line is that “activist” isn’t a very good antonym for “strict constructionist,” “originalist,” “textualist,” or any other mode of “conservative” legal reasoning. Indeed, I think a lot of strict constructionism is activist, as is the “living constitution” approach on the opposite side of the aisle or, for that matter, IJ’s efforts to promote economic liberty as a fundamental civil right.

Onto the specific case of California’s same-sex marriage ruling, again I think it clearly qualifies as an “activist” decision, not so much because it isn’t originalist (to the extent we can discuss “originalism” in the context of a state constitution that is frequently amended) but because the people of California in an initiative several years ago specifically rejected the definition of marriage adopted by the court and no subsequent lawmaking activity has successfully overturned it.

[Permalink] 5. unconvinced wrote @ Sun, 18 May 2008, 7:01 am CDT:

You claim: I think it’s reasonably clear that the Condorcet-winning preference of California voters (and voters in a lot of places in the country) would be for same-sex couples to have all the rights associated with opposite-sex couples but called something other than “marriage.”

And how would we know it? Do you really know of reliable data suggesting so? Not exactly easy to elicit reliable preference orderings in surveys. And that even before we start thinking of framing effects.

That you have a hunch I get. That it is reasonably clear that what you claim is indeed the case I do not.

[Permalink] 6. Rick Almeida wrote @ Tue, 20 May 2008, 2:36 pm CDT:

So…what’s to be done when branches of government disagree? If I remember correctly, in addition to the ballot initiative, the duly-elected CA legislature passed a bill that would recognize same-sex marriage, which was then vetoed by the duly-elected governor, who I believe specifically requested that the CA Supreme Court visit the issue.

Can it be activist for a court to resolve disputes between legitimate branches of government? If so, I wonder what is the legitimate role of higher courts.


Well, it’d be “activist” in the sense that the courts don’t have a role in deciding who’s right when a bill is vetoed—and, in the case of the CA legislature’s bill, it was vetoed by the governor specifically because (a) it would overturn the initiative and (b) the CA legislature isn’t allowed to overturn ballot initiatives by ordinary legislation.

Absent a bill duly enacted into law, because of the gubernatorial veto and failure of the legislature to override said veto, there’s no real question on that bill that can be presented to the courts except procedural questions that are pretty clear-cut (e.g. did the law pass in the first place? did the governor veto it in the prescribed time period? did the override not pass by the required margin?).

Comments are now closed on this post.