Thursday, July 07, 2005


Yale law school professor, Paul Gewirtz wrote an op-ed piece in Wednesday's New York Times that tried to measure, quantify and explain what is a judicial "activist". In the article titled, So Who are the Activists?, Gewirtz and Yale law school graduate Chad Holder tried to figure out what is an activist by asking, "how often has each justice voted to strike down a law passed by Congress?". Gewirtz has conspicuously ignored other methods in which Supreme Court justices can be "activists."

Trying to define judicial activism by counting how many times a Congressional law was struck down is either naive, at best, or intellectually dishonest, at worst. Of course, the article was published and appeared on the popular "New York Times Most E-Mailed Articles" list because noteworthy conservative Supreme Court justices were deemed to be the "most activist".

However, there is a very clear and different way to define activist judges. Conservatives who worry about the handling and treatment of the U.S. Constitution feel that judges are activists when they use personal beliefs or political motives to overturn precedents or fabricate constitutional rights out of thin air.

Examine the famous Supreme Court case, Griswold v. Connecticut. This was the case decided in 1965 that lay the groundwork for Roe v. Wade, decided less than a decade later. While "Griswold" is remembered for invalidating a Connecticut law that prohibited use of contraception by married couples, the Supreme Court arrived at that decision by deciding if found a "right of privacy" in the "penumbras" of the Bill of Rights. Therefore, while there is no provision in the Constitution and no amendment that declares a "right of privacy", the Griswold court decided for itself that such a right existed.

Now, "Griswold" is a decision that struck down a state law but it had many implications for future Supreme Court decisions and laws that were to be enacted. The case does not fit in Gewirtz's and Holder's calculation, one that is self-described as a "reasonably objective and quantifiable measure."

Professor Gewirtz and Mr. Holder fail to explain "judicial activism" by only looking at the Congressional laws that are struck down. In many cases it is understandable for justices to "act" in striking down Congressional statutes. The "activism" that both partisans of both sides speak of is a way in which justices are deliberating "out-of-bounds" in an inappropriate manner.

The definition of a judicial "activist" is when a judge uses means to justify the ends by failing to look at the way the constitution is written and instead uses personal beliefs and goals to manufacture a desired outcome.

So Who Are the Activists? - New York Times


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