Judicial Activism v. Judicial Engagement
The term ‘judicial activism’ has been bandied about so much in recent years its effectively lost any real meaning. ‘Judicial activism,’ like ‘terrorist‘ or ‘Lochner‘ is now defined however the speaker of the word chooses to define it. The term ‘judicial acitvism’ as its presently used means nothing more than ‘a court decision I disagree with.’ When a court decision goes against either conservative or liberal preferences, both sides decry such actions as ‘judicial activism.’ The conventional wisdom holds that ‘judicial activism’ is pernicious; with courts constantly circumventing the will of the people by striking down laws passed by legislatures. However, according to a new study by the Institute for Justice*, in fact the opposite is true. The study finds not rampant ‘judicial activism’ but judicial abdication. To counter the continuing growth in the size and scope of government over the past fifty years, the Institute for Justice calls for greater engagement by judges in the “meaningful review of constitutional claims and the facts behind them….” IJ senior attorney Clark Neily summarizes the studies findings:
Over the 50-year period from 1954 to 2003, Congress enacted 16,015 laws, of which the Supreme Court struck down 104—just two-thirds of 1%. The court struck down an even smaller proportion of federal administrative regulations—about 0.5%—and a still smaller proportion of state laws: 455 out of one million laws passed, or less than one-twentieth of 1%.
In fact, on an annual basis, the Supreme Court struck down only three out of every 5,000 state and federal laws passed. Compared with the explosive growth of government, the Supreme Court’s efforts to impose constitutional limits on the legislative and executive branches are barely blips on the radar screen. . . .
Our Constitution imposes significant limits on government power—limits that are not being properly enforced because too many judges have adopted an ethic of reflexive deference toward the other branches of government. What America needs instead is a properly engaged judiciary that understands the importance of constitutionally limited government and refuses to be cowed by empirically baseless accusations of judicial activism.
*I attended the 2011 Institute for Justice Law Student Conference
Image via flickr user darrenjsylvester