What Is Judicial Activism? What is Judicial Restraint?
"Judicial Activism" has become a right wing code phrase for any decision they dislike. "Judicial Restraint" characterizes any decision they do like. Hence, when state law is overturned by a court to support a right wing agenda, that's never "Judicial Activism" it's just upholding the United States Constitution. The same action, when they dislike it, is "Judicial Activism."
Right now, we are looking at the oddity of having a Supreme Court nominee being raked over the coals for "Judicial Activism" for not overturning a lower court case which upholds a local administrative decision. Why would respecting the decision of local government be "Judicial Activism"? Simply because the right disliked the decision of local government. By definition, this not "Judicial Activism., it is "Judicial Restraint."
But what is the place of the courts in creating law, if any? Do the right wingers who use the phrase "Judicial Activism" have, at least, a theoretical point? Should the courts defer to local legislative and administrative bodies when they make and interpret their own laws? This is what Judge Solomayor did in the New Haven Firefighters case. Or should the courts, as the right wingers would like in this case, overturn that decision, which would be, one would think, judicial activism? That depends on whether you favor a Common Law system or a Code Law system. The United States and Canada both have both systems.
The Common Law
The Common Law system is based on the English system of law, which is the system that has developed for thousands of years in England. For centuries, the courts of England have decided cases whether or not Kings had proclaimed law and Parliaments have met. There was a time that the only reason a Parliament met was to raise taxes. The Magna Carta demanded the King raise taxes in this way, and not just by decree.
The courts determined if a pickpocket was to pick their victim's vegetables or go to jail, if shouting in a market was the right of the shouter or a disturbance of the peace. These matters were not considered important enough for the legislative body to consider. The English courts, quite literally, made the law.
When a similar case came up to a new court, if the court were aware of a similar case by a different court, it would usually follow the same rule. Rules by other trial courts were influential, but not binding. Law cases were not well organized, and much of what was known was from massive reading of the law. At times, centralized courts with the power to make overarching rules met, courts of appeal, which then and now set the rules of law from among the different ways different courts had decided the law. These rulings were binding. A lower court decision which was contrary to such a rule was, and still is, considered a wrong ruling.
As time went on, some of the rulings by local and appeals courts were effected by laws passed by the legislatures. Parliament or Congress, laws were considered amendments to the existing body of Common Law... law made by judges. When new issues came up, rules which existed under older law were looked to to create new rules. Except where a legislative law was called a principle and expressly stated it was to be construed broadly, it was construed narrowly as a band aid and amendment on the overall body of the Common Law. In projecting the new rules, the courts looked first to the laws made by their historic judicial predecessors.
In the Common Law, judges make law, legislatures amend law. The English Common Law is the basis of law in 49 of the 50 states, and in Anglophone Canada.
In Louisiana and Quebec, there are communities founded by the French. The French had absolute monarchy until the French revolution. The courts were answerable to the crown. When the revolution came, the principles of the revolution came to be embodied in a massive Code of French law, the Napoleonic Code. Under French law, the Code and the actions of the legislature are the underlying law, and the courts look to the Code for First Principles.
The Napoleonic Code was not the first attempt to make law systematic, but it was the first successful attempt. It was drafted, not surprisingly, not by a legislature, but by judges who had experience in passing on real cases. Nevertheless, it was then adopted as the underlying law expressing a set of principles, and the rules could be amended by the legislature. Hence, the legislature was given greater diffidence than in a Common Law system.
The French System v. The English System
Right wingers, who object that legislatures are corrupt and government can do nothing, nevertheless seem to think that the collective wisdom of the ages should be overwritten by gerrymandered legislatures elected by campaigns financed by lobbyists. The principles which have developed in the English Courts had often been at odds which the desire of those who wish to keep tight controls on society. For example, the English Courts have ruled that it is not legal to shoot an unarmed intruder in your home. This law dates to the 12th or 13th century, if not earlier. In most of the Southeastern United States, this rule has been overturned by legislation. Clearly, in a slave-owning society, those which have great homes and own other people are advantaged by being able to shoot their slaves. When people are property, one cannot say their lives are more valuable than property. Similarly, there was no basis for enslaving a newborn under English law. This was an innovation adopted by Southern legislatures to create the institution of American slavery.
Having legislated these changes, time passed. In the 1850s, Southerners dominated the United States Supreme Court. In a case of going to their Southern legislative principles, they overthrew the laws of the Northern states which forbade slavery in their boarders, and applied those legislative principles to the North, overturning the Missouri Compromise and centuries of Common Law, and finding that black people had no rights white people were bound to respect. This is usually cited by the right as a matter of Judicial Activism. Dred Scott v. Sandford held that legislatures did not have the right to forbid slavery... even though the underlying law creating slavery was created by the legislatures in Southern states. I would submit this is the same brand of 'Judicial Activism' as Bush v. Gore, which likewise was based on no legal basis but only on the right wing going for the outcome they wanted without regard to principles of any type, legislative or judicial. I have never heard one word from the right wing objecting to the judicial activism of Bush v. Gore. However, now that they are trying to separate themselves from an unpopular Bush presidency, you may hear such objections in the future.
In sum, there is a basis for judges to proceed with principled caution, without regard to whether one defines such as judicial activism or judicial restraint. What one sees as one or the other is partially a function of what one believes the outcome should be, rather than just a matter of what one believes principles are. Such principles do not change with political fashion. However, the cries of the right are not based on principles of judicial restraint, just on pressing their agenda in courts, in legislatures, and in the executive branch.