Understanding what ‘judicial activism’ means

Lance McMillian's picture

The fate of Obamacare now rests with the Supreme Court, and President Obama knows it. In the strongest language of a president toward the Court since FDR announced his ill-fated court-packing plan in the 1930s, President Obama recently challenged the legitimacy of any decision by the Court ruling Obamacare unconstitutional.

In the President’s words: “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Is the President correct to brand conservatives opposed to judicial activism as hypocrites for wanting the Supreme Court to now overturn Obamacare? The answer to this question depends wholly on what one means by “judicial activism.” And that is where Obama’s argument falls apart.

While the President correctly notes that conservatives routinely deride judicial activism, that phrase does not mean to conservatives what Obama says it means.

For conservatives, judicial activism is not about, in the President’s words, “an unelected group of people [who] would overturn a duly constituted and passed law.” Courts overturn laws as unconstitutional all the time, and this power has existed since at least the time of the 1803 landmark case of Marbury v. Madison.

Rather, conservative complaints about judicial activism have a much different genesis, one that derives from the importance of the rule of law in safeguarding a free society.

The rule of law protects freedom by establishing a standard upon which all of us can depend and all of us must abide. No one is too big to be above the law, and no one is too small to be unworthy of the law’s protections.

This system requires the judiciary to keep other government officials in line whenever they act in ways contrary to the Constitution. The role of judges, therefore, is to enforce the rule of law — no more and no less.

Judicial activism, from this perspective, results when judges abandon this duty to follow the Constitution and instead base their decisions on personal preference.

Lady Justice wears a blindfold because court rulings should not be dependent on politics, bias, favor, money, power, or any other criteria apart from the law. The last thing we should want is a judiciary that bends reflexively to the will of the political branches of government.

Judicial independence is highly valued because courts must be free to enforce the law even when doing so is unpopular. Judges are the last line of defense against politicians who pander to the moment. The law should always trump popular passion.

Suppose Congress passes a law outlawing criticism of the government. Should the Supreme Court overturn the law as a violation of the plain terms of the First Amendment? Or should the Court bow down to the wishes of a “democratically elected Congress” and allow the law to stand?

The only defensible result in this scenario is for the Court to throw out the law because the Constitution squarely forbids any effort to ban such criticism.

Overturning such a law is not judicial activism; instead, judicial activism would be any attempt to allow this type of constitutionally offensive law to stand.

Similarly, striking down Obamacare would not constitute judicial activism if Congress lacks the power under Article I under the Constitution to enact Obamacare into law. On that score, the recent oral arguments before the Supreme Court on Obamacare’s constitutionality are significant.

The Constitution clearly intends for there to be limits to the areas of life that Congress can regulate. The whole concept of enumerated powers centers on the idea that Congress can only legislate in the limited areas spelled out in the Constitution.

As James Madison wrote in Federalist Paper 45, “The powers delegated by the proposed Constitution to the federal government are few and defined.”

Solicitor General Donald Verrilli’s inability in oral argument to articulate a limiting principle to congressional power post-Obamacare demonstrates the fundamental problem with the legislation. Signing off on Obamacare means signing off on the idea that Congress can regulate any area of life it wants to.

And that position is untenable for any jurist interpreting the Constitution. It is also dangerous for the rest of us.

Activist judges threaten freedom because they elevate personal preference over constitutional text. The rights we cherish cannot be secure if the words of the Constitution are not binding on those who take an oath to honor and protect those rights. Liberty and fidelity to the Constitution go hand-in-hand.

[Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]

Had It
Had It's picture
Joined: 10/30/2007
Right Helpful Lawyer

Lance McMillian is the husband of State Court Judge Carla Wong McMillian, and by referring to his wife, I agree that his blog is political.
Judge Carla was a political appointee of the Governor’s office. She has never been elected. Although Lance’s Article is factually true they must disagree because Carla is an activist judge.
I have never seen a judge who holds such unfair trials as Carla Wong McMillian. She is biased, acts as advocate lawyer for the side she favors, by making arguments for her favored side and in doing so prejudices the jury. Quotes the wrong law and interprets it as she sees fit. Carla ruled that the Georgia Department of Health Regulations are not for the protection of the public but only a revenue producing tax. Now really, Health Regulations are nothing but for public protection. In doing so she used the wrong edition of the Health Manual to delete evidence.
The worst ruling Judge Carla has ever made was deleting a defendant’s defense. That guarantees the defendant will lose.
Even worse the party that Carla favored easily won the case even though her winning party was convicted in criminal court for violating health regulations on the same issue.
This is judicial activism at its worst. Moreover, her activist rulings has resulted in unnecessary costs of appeals for both taxpayers and the defendant. And there will be more costly lawsuits in this matter because Carla refused to enjoin a party who wrote and signed the contract dispute, ruling that to be a separate suit. How absurd and uneconomical.
All of this to intentionally guarantee that an out of County company, criminally convicted for operating without permits and a State license, could continue to prey on unsuspecting honest Fayette citizens.
Vote no to Carla Wong McMillian in her first bid for election in July 2012 for Judge.

helpful lawyer
helpful lawyer's picture
Joined: 10/27/2006
Judicial activism and old fossils

Lance McMillian is also the husband of our Fayette State Court judge.

I find his explanation of judicial activism highly political.

Judges who take an oath to honor and protect our rights have taken an oath to assure us "equal protection under the law," as guaranteed under the Constitution's 14th Amendment, and that could mean "equal access" to health care under reasonable terms. People over the age of 65 already have that equal access through Medicare, so extending it to everyone seems to be no major constitutional leap.

Lance McMillian is entitled to his opinions, of course. But the rest of us are constitutionally entitled to ours, too, a right protected by the First Amendment (as extended to the States through the 14th Amendment's equal protection guarantee).