Editors' note: this piece is co-authored by Robert Alt.
With Elena Kagan set to appear before the Senate Judiciary Committee later this month, the issue of judicial “activism” is again leading the debate over judicial nominations.
But not “activism” the way conservatives understand it. There appears to be a coordinated effort by President Obama and liberals in academia, the media, Congress and advocacy groups to damage the reputation of conservative members of the Supreme Court by falsely characterizing them as activists who have “abandoned the principle of stare decisis” and who have broken their promises of “fidelity to the law” from their confirmation hearings.
By doing so, liberals hope to fool the public into believing that left-wing ideologues such as Kagan or Goodwin Liu are not the danger; conservative “activist” justices like Roberts and Alito are. Of course, nothing could be further from the truth.
Judicial activism -- real judicial activism -- occurs when judges write subjective policy preferences into their legal decisions rather than apply the Constitution impartially according to its original meaning or statutory law based on its plain text. Such activism is not a function of outcomes, but one of interpretation. It does not necessarily involve striking down laws; it may occur when a judge applies her own policy preferences to uphold a statute or other government action that the Constitution clearly forbids.
Dissatisfied with this logical and accepted definition, liberals have been striving to redefine judicial activism downward. Under one formulation, judicial activism occurs anytime that a statute is struck down, like the federal ban on independent political expenditures in Citizens United v. FEC. In another popular version, judicial activism is all-but-meaningless -- a term of derision that means little more than “I don’t like the policy outcome of this decision.” Both definitions of judicial activism are incorrect, and both are in full display in the debate over Citizens United and Ledbetter v. Goodyear Tire & Rubber Co.