Many conservatives, myself included, have seized upon Obama's "empathy" litmus for determining his appointment for the next Justice of the Supreme Court. The argument is that "empathy" is a code word for judicial activism, and judicial activism is bad. The most natural counter to the argument, then, is to pick apart the term "judicial activism." The argument proceeds in two parts. First, "judicial activism" is a bastardized term thrown around to mean simply "any judicial decision one happens not to like." Second, judicial activism is inescapable anyway, so we should just embrace it.
As to the first point, it is true that judicial activism is often wrongfully confused with “judicial review,” which is simply what courts do when they conclude that two laws are irreconcilable, and strike down the lesser to preserve the integrity of the greater. Tim Sandefur has a good explication of this here. Judicial activism is best understood as a corollary of political activism. Where political activists petition and exploit the political system in order to advance a particular policy objective, judicial activism is the petitioning and exploitation of the judicial system to advance a particular policy objective. It can be troubling when certain activists do this, such as environmental groups, or class action tort lawyers. The courts have developed an elaborate doctrine of “standing” to prevent some of the more egregious abuses of this, in fact. That is, if you’re not someone who was actually harmed by a particular law, you have no business petitioning against it through the judicial process—and the court will tell you so.
The real problem with judicial activism is when judges exploit the judicial system to advance their personal policy objectives. This occurs, as Orin Kerr over at The Volokh Conspiracy describes, when all the legal arguments only get you to a little better than 50% chance of getting the thing right. What you’re left with, the argument goes, is nothing more than personal policy preference of the particular judge. Thus, there’s no escaping judicial activism, and all the conservatives should just put a cork in the objections to Obama’s “empathy” talk. After all, if a judge cannot escape using his or her personal preferences, we should hope for something friendly-sounding, like judges with empathy, rather than something nasty-sounding, like judges who like to hurt puppies and draw Hitler mustaches on people’s pictures.
But this resigned acceptance of “judicial activism” is disconcerting. Ed Brayton explains why he thinks judicial activism (in particular, infusing “empathy” into judicial decision-making) is no big deal.
Which makes me laugh because "activist judge" is sort of the ultimate judicial code word. All of this highlights the split between formalism and legal realism, which roughly (but only roughly) corresponds to the conservative/liberal divide. Conservatives generally believe that judicial decisionmaking is merely a question of process; apply the proper rules of interpretation and you reach an objective, non-ideological, non-political conclusion.
This is nonsense, of course; conservatives are no less likely to have their values and political views influence their judicial decisionmaking than liberals, they just pick the process that leads to the result they want (and ignore that process when it doesn't reach that result; yes, I'm looking at you, Justice Scalia in the Raich case).
But need we throw in the towel so soon? There is no shortage of theories of legal and constitutional interpretation. Sure, anyone could make the argument that what a judge was really doing was imposing a personal preference, and using originalism, anti-majoritarianism, democracy-maximization, egalitarianism, or what-have-you as a mere pretext to get there. So what? Let them. If it’s a pretext, dissect the judge’s reasoning and expose the flaws. That is what the western Enlightenment tradition is good for. I suspect that a good many judges hop around from one theory to another for lots of different reasons—perhaps because they are concerned more about outcome than process; perhaps because they believe different cases call for different judicial theories; or perhaps because, well, judging is just hard and judges don’t have it all figured out yet.
Whatever is happening below the surface, the judge has to give reasons. Strictly speaking, “the judicial power” that the Constitution vests in the Court does not permit judicial activism. A judge has to come up with a decision based on reasons, not just conclusions. Judges might not help having conclusions before they have reasons. But reasons must be given. And the hope is that, in the process of giving them, the knee-jerk conclusion would give way to one that follows naturally from legal premises.
But the one thing we should not do it tell judges to hang it up, forget about jurisprudence, about consistency, about exercising judicial power. Instead, when things get tough, ask the litigants to show you their bank accounts, and go with the one who could use a little boost.
Judges may use whatever process supported by reason they deem fit to decide a particular case. “Empathy,” however, is not such a process. It is, to repeat Kerr, “an invitation to replace law with politics.”
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