February 2014

Both left and right agree: Activist judges are dangerous. We should appoint judges who show judicial restraint, say both sides.

Yet when both sides in American politics agree on something, we should ask at least two questions. Are they speaking the same language? And is what they want really all that great? This month, lead essayist Timothy Sandefur argues that judicial activism isn’t necessarily a bad thing. On the contrary, we should welcome judicial activism that protects individual liberties, and we should condemn judicial restraint when it means that the courts are letting the legislature overstep its constitutional bounds.

What about democracy? Should the courts defer to the will of the people? Yes, says Sandefur, but only with the understanding that our Constitution is itself the will of the people, in its most considered and final expression. 

To discuss with him this month we have invited a panel of experts, each with a somewhat different perspective on the question: Kermit Roosevelt III of the University of Pennsylvania School of Law; Sandhya Bathija of the Center for American Progress; and David R. Upham of the University of Dallas.

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Lead Essay

  • Left and right agree that activist judges are bad. But the concept of activism is ultimately quite fuzzy, and it may even interfere with the work that judges should be doing. When courts defer too much, the legislature’s power grows beyond its constitutional bounds. Answering the question of how active our judges should be requires answering what exactly they should be doing; Sandefur’s answer is that judges should strenuously enforce the Constitution against the other branches of government. Failing to do so not only leaves bad law in place, it thwarts the will of the people as expressed in the Constitution.

Response Essays

  • Kermit Roosevelt III discusses judicial activism and restraint. He finds neither is always appropriate: A theory of when judges properly strike down laws will not necessarily hang on how many laws they strike down. Judges, though, are not necessarily better at deciding economic questions, and they may do harm either by upholding or by striking down a law. Either of these harms may fall on powerless minorities. Identifying legislation that is simply the product of favoritism or rent-seeking is an enduring challenge, not one that can be settled with a theory of activism or restraint.

  • Sandhya Bathija argues that restrained courts have done best to protect rights from the interests of the wealthy and powerful. Among the three branches of government, Congress has done the most to rein in the power of big business, and this is overwhelmingly for the good of the people. That result shouldn’t be so surprising, as Congress is the most democratic branch of our government. Sandefur’s vision of the judiciary would paralyze the federal government and would constitute “an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.”

  • David R. Upham argues the Founders intended a significant democratic element to our Constitution; fidelity to it requires some judicial restraint. The branches of the federal government are coequal, and deference to elected legislatures is consistent with the Founders’ principles. It is also reasonable, in that legislatures cannot act before they have cleared significant procedural hurdles, increasing the chance that their work will reflect considered judgment about the Constitution. Examples of improper but democratically enacted legislation oppressing minorities so far advanced have been inapposite.

Coming Up

Discussion among all participants to continue through the end of the month.

Related at Cato

Book forum: The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, January 30, 2014, with Timothy Sandefur

Debate: Is Judicial Restraint the Proper Response to Judicial Activism?, October 21, 2012, with Roger Pilon

Book forum: David’s Hammer: The Case for an Activist Judiciary, April 3, 2007, with Clint Bolick