HOW DOES A MICHIGAN TEXTUALIST DEFINE JUDICIAL ACTIVISM?

OR,FOR THAT MATTER,JUDICIAL RESTRAINT

I was reading Howard Fineman's recent (July 18,1009) Newsweek column on Judge Sonia Sotomayor's Senate confirmation hearings.  He is not a big fan of the hearing process, as indicated by the column's title, "Advise and Shut Up Already".  As a Michigan lawyer, having listened to claims of judicial restraint and accusations of judicial activism from political partisans of all stripes, I found this passage, near the end of the column, particularly interesting:

"...Similarly, no one professes to favor an "activist" judge, and Sotomayor dutifully denied that she was one.

Of course, Chief Justice John Roberts portrayed himself at his own hearing four years ago as a cautious and judicially modest dweeb. In the intervening years, he has become an Incredible Hulk of "activism." Democrats don't dare admit that they in fact hope Judge Sotomayor will undergo a metamorphosis, too. And she probably will. It's what judges do. In one way or another, all of them are activists, in that they have no choice but to apply the Constitution to a changing world.

 All nominees pledge allegiance to the principle of stare decisis (lawyer talk for legal precedent), but constitutional law evolves in response to new facts and social conditions. Conservatives claim to revere precedent but want to ditch Roe v. Wade, in part because of advances in prenatal medicine. Meanwhile, liberals have now embraced the virtues of "judicial restraint" as they decry decisions handed down by the Roberts court."

I agree with Mr. Fineman.  At any given time, the definition of judicial activism or judicial restraint is certainly a relative thing.  I am sure the self-proclaimed textualists, past and present, of the Michigan Supreme Court, would disagree. 

A rather comprehensive definition of judicial restraint can be found here, though I am sure there are other sources.  Among the definitions:  "Judicially-restrained judges respect stare decisis, the principle of upholding established precedent handed down by past judges." 

Now if those advocates of judicial restraint on the Michigan Supreme Court have shown respect for stare decisis, I would indicate that there is substantial evidence to prove them wrong.  It can be found elsewhere on this site. 

Here is the definition of judicial activism from the above source:

Judicial activism is a critical term used to describe judicial rulings that are viewed as imposing a personal biased interpretation by a given court of what a law means as opposed to what a neutral, unbiased observer would naturally interpret a law to be.

Sounds bad.  No one admits to being a judicial activist.  It's always the judges of the other political stripe that are the activists.  In fact Justice Robert Young has called his lack of respect for stare decisis (see above definition of judicial restraint), "judicial restraint".  He must undo the activism of prior Justices, prior Courts, prior centuries, and prior millenniums, imposing his opinion of the law in place of all those wrong-headed activists who preceded him.  Please refer to this piece on Justice Young's opinion of our 800 year old tradition of Anglo-American Common Law.

So, here are my relativist definitions of judicial activism and judicial restraint.

Judicial Activism.  A decision of any judge/Justice of the opposing political party, even in a state with a nominally non-partisan judiciary.  A judicial activist has no respect for the law, and makes decisions based solely on personal or partisan political beliefs.

Judicial Restraint.  A decision of any judge/Justice of the political party of which the person using this term is a member.  Judicial restraint can be exhibited in two ways.  First, in upholding past decisions with which the party agrees. Or, second, in overturning decisions with which the party does not agree.  When acting in conformity with the second definition, judges/Justices must accuse the authors of the prior decisions of being "judicial activists."

I wish everyone could admit that being a judge is hard, and simplistic philosophic labels do not apply.  Unfortunately, that makes partisan politics a little more challenging.

Comments

[Liisa R. Speake]

This is a fascinating post, Mike. I think the idea of judicial restraint and judicial activism has been turned on its head here in Michigan.

Liisa R. Speaker
Speaker Law Firm, PLLC
www.MichiganAppeals.blogspot.com

[JR]

I could not disagree more with your conceptualization of activism and restraint. I find it odd, but not telling, that I have never heard a conservative make such a claim, though often hear it from more liberal-minded folk. But it always comes off as a last-ditch effort to argue that all judicial philosophies are on par, and thereby take a relatively moderate stance, when in reality there is no effective label for the jurisprudence exercised by what is largely considered the "activist" wing of the Court. You can always tell the losing side when it offers stalemate. But at the end of the day, is not some guiding principle is necessary? And though you will inevitably retort with something as trite as "Even Scalia writes opinions in which he discards the textualism he champions," you simply cannot shake the fact that 98% of his decisions do track his textualist philosophy; that, in any event, any admittedly rare misstep on his part is no indictment of the philosophy itself; nor the frighteningly pathetic fact that I know with 99% certainty how a Marshall (Thurgood) or Brennan would decide a case without reading past the facts. The oath is to a document. With all due respect, I find your view on this fatally short-sighted, and without a doubt skewed by the myopic lens of politics. It would be a pleasure to discuss this further, so please do not hesitate to email me.

[Mike Butler]

Ouch, the skewed by politics comment hurts. If you look at my site you will find that I have a whole category on the evils of partisan politics.

There is indeed much in what you say, and I agree about the necessity of guiding principles.

I still believe (and I may have missed something, as this site is an off hours hobby and I have to run to court) that activism is a label used by the losing side, liberal or conservative. Textualism, in my opinion, has been used as a convenient label, and one that carries the obvious appearance of legitimacy, to mask, at least in Michigan, a results oriented legal philosophy.

I am more convservative than liberal, if tags must be applied, and I am currently wrestling with the practical results of the Citizens United case, which may be a correct decision.

Anyway, happy to discuss this further. Got to run to my paying job.

Thanks JR. Be well.