It might be time to bury a phrase that I myself have used all too often. Judicial activism is the term we use to describe, simply, decisions we don’t like. The problem with the term is that it connotes judicial behavior that trumps the majority will. The problem with this line of thinking is that when the majority, or a majority of the people’s representatives, acts in an unconstitutional manner, the Court – be it a state, or Federal one -ought to overrule the majority.
Let me use two cases to illustrate what I am talking about. In 1942, the Court rendered a unanimous decision in the case of Wickard v. Filburn. The 9-0 decision upheld the federal government’s ability to regulate how much wheat a farmer grew even if the wheat was consumed for purely personal consumption. The Court held that the minimal consumption had an indirect effect upon interstate commerce, and thus federal regulation was permissable. Remember, this absurd decision upheld governmental action.
In 1995, in the case of US v Lopez, the Court, by a 5-4 vote, ruled that the federal ban on firearms in school zones was unconstitutional because Congress had no jurisdiction under the commerce clause to make such a ban. In so acting, the Court acted to restrict the broad construction of the commerce clause for the first time in decades.
The first decision involved an expansive reading of the Constitution, while the latter was an originalist-based decision that was a far more reasonable interpretation of the Constitution. The former upheld an act of Congress, and the latter struck one down. Which one was “activist?”
Now, perhaps judicial activism is merely an awkward term of art like “war on terrorism” that is simply an attempt to express an idea in a general sense. But I’m one of those annoying sticklers who thinks that we should use words and terms accurately – thus my tendency to say “leftist” instead of “liberal.”
To be honest, I really can’t think of a better way to express the problem. How about judicial expansiveness? That’s a bit ugly. Judicial tyranny? Overstated, and it has the same problem as activism as it expresses the idea that it’s only bad when the Courts overturn the will of the majority. Sucky judicial decision-making? That’s more like it.