Re-Activist Judges

Activist judges? What's in a name?

By DAHLIA LITHWICK
GUEST COLUMNIST

There is probably nothing I can do or say to convince you that the words "activist judge" have no more meaning than the words "hectic smurlbats." You've heard "activist judges" so many times -- from the president, from Congress, from the angry guys on the radio -- that you can define it right along with me. Together then: Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars.

That sounds right. Justice Antonin Scalia would say it better. He'd refer to the framers and toss in words like kulturkampf. But it hardly matters. We all evidently believe that you're either for the liberal activist judges or against them. Folks on the left say they protect minorities from majority tyranny, as the Massachusetts Supreme Judicial Court did last year in the gay marriage decision. Folks on the right say they act as unelected superlegislators. Folks on the left say they are interpreting a living Constitution. Folks on the right say they are unmoored from any fixed point, save, perhaps, the Harvard Law School.

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges "make" law, and conservative judges "interpret."

A modest proposal, then: Let's invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely "interpreting" the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by "liberal activist judges." And while I am open to better suggestions, here's a tentative offering: "Re-activist judges."

Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the "dignity" of states. Re-activists view Lawrence v. Texas -- last year's gay sodomy case -- as having all the jurisprudential force of a Post-it note. When the 11th U.S. Circuit Court of Appeals upheld an Alabama ban on the sale of sex toys last month, it did so by sidestepping the logic animating Justice Anthony Kennedy's opinion in Lawrence. Ignoring Kennedy's lofty promises of sexual privacy -- his assurance that "there is a realm of personal liberty which the government may not enter" -- the 11th Circuit framed the case as a dust-up over the constitutional right to a vibrator.

Re-activists such as Priscilla Owen, President Bush's nominee to the 5th U.S. Circuit Court of Appeals, rewrite the Texas parental notification statute in abortion cases, to make it vastly harder for young women to bypass parental consent. Re-activists such as another Bush nominee, Janice Rogers Brown, have called the Supreme Court's shift toward defending New Deal legislation in 1937 the start of "the triumph of our socialist revolution."

Re-activist judges have adopted the view that their personal religious convictions somehow obviate the constitutional divide between church and state. Bush's recess appointment to the 11th Circuit, Bill Pryor, expended energy as attorney general of Alabama to support Judge Roy Moore in his quest to chisel the Ten Commandments directly into the wall between church and state. Pryor is entitled to be offended by case law barring government from establishing sectarian religion. But what re-activist judges may not do is use their government office to chip away at that doctrine.

Re-activist judges are able to present themselves as "strict constructionists" or "originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. And while there is an urgent normative debate underlying this issue -- over whether the Constitution should evolve or stay static -- no one ought to be allowed to claim that the act of clubbing a live Constitution to death isn't activism.

So, judicial re-activism. It doesn't exactly trip off the tongue, I know. But let's put it out there anyhow, and attempt to level the rhetorical playing field before November.