Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. In this Wall Street Journal ($) op-ed on the nomination of John G. Roberts to the U.S. Supreme Court, Professor Epstein makes a good point regarding the simplistic and often misleading criticism of “judicial activism”:
From the get-go, I would insist that we view with suspicion the oft-hurled epithet of “judicial activism.” Judicial review, which allows the Court to strike down federal and state legislation, is an indisputable part of the Constitution. The structural and substantive prohibitions the Constitution contains are large. One can be a “strict constructionist” and still believe that major legislative initiatives, executive orders, and administrative rules are unconstitutional. By the same token, the government should be accorded a wider degree of discretion in running its own affairs — the military, courts, schools, etc. — a view that is largely permissive of government affirmative action programs that parallel those which comparable private institutions adopt on a voluntary basis. In these cases, the private benchmark offers a useful measuring rod for state discretion.
In that regard, Professor Epstein goes on to make an interesting point about the recent public criticism of the Supreme Court’s controversial decision Kelo v. The City of New London as being another example of judicial activism:
Next, Kelo v. The City of New London recently addressed the deceptively difficult question of what counts as a taking of property “for public use.” Justice Stevens held that any “conceivable public purpose” sufficed, and thus allowed the City to buy out ordinary homeowners in order to warehouse their property for future but undefined “park support” purposes.
Kelo has prompted an incredible popular backlash, as legislatures across the country have wondered how an “activist” Court could have such a tin ear for the Constitution. How ironic! Justice Stevens’s lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the “Public Use” Clause. . .
Read the entire piece.
Thus, in matters of judicial interpretation, be wary of labels. As we have seen recently with the failure of many federal judges to exercise their judicial authority to turn back the executive branch’s dubious criminalization of business during the post-Enron era, criticism of judicial activism and advocacy of strict constructionism is often merely a political front for deference to the abusive exercise of state power. In that vein, the Supreme Court’s recent unanimous decision in Arthur Andersen could be characterized as judicial activism. If that is so, then count me as a judicial activist.