Activist Judges

I am sometimes confused by what is meant by an “activist” judge. Sometimes, when wingnuts use that expression, they mean judges who strike down legislation as unconstitutional and beyond the power of the legislature. These judges are said to have substituted their own judgment for that of the elected representatives of the people. In a system of limited government, there are, in fact, areas where legislators may not tread, and it seems to me to be a perfectly cromulent exercise of judicial power to check legislative usurpations. I rejoice whenever a court tells the legislature that it cannot do something. Otherwise, you end up with straight majoritarian tyranny.

In my view, inappropriate judicial “activism” consists of those cases where judges craft remedies that require the state to do something affirmatively that it has not chosen to do. For example, court designed busing of schoolchildren was, in my opinion, overreaching. It was proper to strike down de jure segregation, but the courts need not have crafted a specific solution to the problem. And attacking de facto segregation went over the line since this involved courts’ ordering state action to address a problem that was not a creature of the state. It is one thing to rule that the state cannot require segregation; it is altogether different to order that the state cannot tolerate segregation.

A court may properly rule that a municipality may not take a subject’s property, but I have a hard time imagining a situation in which a court could properly decide that a municipality must take someone’s property by eminent domain. Likewise, a court may strike down a smoking ban, but it should not be able to impose a smoking ban where the legislature has not chosen to do so.

In sum, there are circumstances where I want judges to be active and to challenge legislative overreaching. In other cases, I want judges to defer to the legislature. The former generally involves matters where the legislature has spoken, while the former involves matters where the legislature has not.