Saturday’s Wall Street Journal carried an editorial–“No Exit: Judicial Activism is Inevitable” by law professor and blogger Ann Althouse. She received permission to reprint the editorial on her blog: http://althouse.blogspot.com/2006/10/no-exit-judicial-activism-is.html. I recommend it to those interested in the role of courts in the legal and social battle over abortion, and to those interested in the role of judges in our system of government. One point she makes is something I tell my students: “judicial activism” is in the eye of the beholder. Many students equate judicial activism with politically liberal judges and judicial restraint with political conservatism. This belief has more to do with pejorative use of “political activism” than with anything inherent in those who practice it. Althouse puts the point this way in the first paragraph of her editorial:
If you don’t like the role the courts are currently exercising, you find a way to call it “activism” and argue that the change you want would be “restraint.” But if the status quo pleases you, you insist that what the judges are doing is not “activism,” rather, nothing more than what the law requires.
She goes on to say that overturning the Supreme Court’s decision in Roe v. Wade–the bugaboo of conservative “anti-activists”–would not end the courts’ role in deciding legal questions relating to abortion. Roe’s disappearance from the judicial landscape would result inevitably in the appearance of new legal questions.
Her dissection of the use of “judicial activism” speaks to a broader point. What passes for political discussion often involves nothing more than applying labels that bypass analysis. Saying that a political candidate is a “tax and spend liberal’ garlands her with negative associations without the drudgery of understanding her actual positions. Ditto “right wing nut bag.” Political shorthand such as this preaches to the choir without advancing public discourse.