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Bar News - June 18, 2004 Morning Mail ~ Judges Not 'Bystanders'... ... in Creating Social Change I read with great interest President Russell Hilliard’s piece, "Like Beauty, Judicial ‘Activism’ is in the Eye of the Beholder," (page 4, Bar News, May 7, 2004). Although I have great personal regard for Russell Hilliard, I write to disagree with the views expressed in his column and the implicit suggestion that Bar members have an interest in a collective denial of the existence of judicial "activism." Hilliard’s view, which appears to be similar to many apologists for the exercise of judicial power in solving society’s problems, is that "activist" is merely a label that dissatisfied litigants or onlookers apply to judicial outcomes they don’t like, and that social change is an accidental byproduct of the courts’ dispute resolution function. I don’t object to anyone’s right to believe that judges are bystanders in the process of creating social change, but that view overlooks several important points. The view that judicial power does not exist or that judges achieve policy ends only as a byproduct of deciding cases is itself quite often a partisan view of the judicial process, one used by people who happen to like a particular outcome. Observers sometimes draw a distinction between judicial activism and judicial restraint. Unfortunately, that distinction sadly goes unmentioned in Hilliard’s piece. Many apologists also neglect to mention the exercise of judicial power at the expense of the legislature’s, executive branch’s, or voter’s power to achieve social change. The concept of judicial activism, however, does have real meaning. Policymaking is inherently the work of the courts, but judges have some control over the extent of their involvement in policymaking. In deciding cases, judges often face a choice between alternatives that would enhance their court’s role in policymaking and those that would limit its role. . . .When judges choose to increase their impact as policymakers, they can be said to engage in activism, and choices to limit that impact can be labeled as judicial restraint. Thus, the term "activist" implicitly compares a court’s exercise of judicial power to a more "restrained" model. It can be used to express the view that a court has asserted for itself a power to decide questions of social policy at the expense of legislative or executive power, and may not be used to disagree with the particular judicial outcome in dispute. Indeed, as an individual whose personal views tend toward the moderate middle, I have no quarrel with many social policies established by the courts. Nevertheless, I do take offense as a lawyer when judges or their apologists pretend that there is anything the least bit mechanical, unavoidable, or non-political in having courts, instead of elected officials, or individual voters decide difficult policy questions. We should not give up the effort to understand when courts behave in "activist" ways simply because partisans on both sides have hijacked the label when it suited their purposes. Achieving the "right" balance of powers in a republic has never been easy. As citizens and "process types," however, we often do care who has the power to decide questions of social policy, and many of us are rightly skeptical of a pretense that courts are mere bystanders in the process. Some of us even believe passionately that there are times for courts to be active (Brown v. Board of Education comes to mind) and times for them to be less active (the "switch in time that saved nine" in the wake of President Roosevelt’s court-packing proposal comes to mind here). Hilliard states that he is comfortable that "principles" guide courts as they undertake to construe statutes and constitutions. However, a further reason not to abandon the effort to identify "activist" judicial policies is that there is nothing mechanical or inevitable about the choice of "principles" used in the interpretive process. Hilliard asserts that the law must be "stable" but "cannot stand still." Unfortunately, the need for the law to evolve to meet changing societal conditions neither persuades me that there is no such thing as judicial activism, nor does it explain how and when courts should take responsibility for legal and social reform away from the executive branch, legislature, or voters. Hilliard’s assurance that legislatures and executive branch officials "usually" can undo judicial legislative acts is less than cold comfort, because it is precisely in those "unusual" cases that the charge of judicial activism is most compelling and the dangers of inter-branch conflict are at their highest. Hilliard also invites us to "consider the prospect of our society without an independent judicial branch." The invitation and subsequent contemplation disprove neither the existence of judicial activism nor the possibility of judicial restraint. The occasional avoidance of inter-branch conflict is not a loss of independence—it is often the very means to discourage other branches of government from tinkering with judicial power in the first place. The argument that there is no such thing as judicial activism or restraint is also at odds with the historical record—there have been times in the history of this state’s judiciary when the court was relatively quiescent in exercising its power to interpret the state constitution and times in the history of the U.S. Supreme Court when it avoided conflicts with other branches of government. I am aware of no evidence that those courts suffered a loss of "independence" in deciding disputes between individual litigants or a significant loss of the institutional capital needed to decide important controversies. The charge that the courts’ critics are plotting to deprive the rest of us of an independent judiciary simply by using the term "activism" is a straw man, which avoids substantive debate about the best ways to achieve a wise balance of power in a constitutional democracy. Worse, the "independence" argument has impoverished our discourse through overuse and appears on its way to becoming a litmus test to identify the true "friends" of judicial power—allowing the courts and the Bar to label and marginalize any critic, any reformer (no matter how mild) as a "threat" to an independent judiciary. Courts may care deeply how the public perceives their policymaking role (although I fail to see how pretending that such a role is nonexistent would help them), but it would appear that the Bar has no organizational interest in whether its members or the public perceive courts as essentially restrained or essentially activist. Lawyers want a forum to which we can take our clients’ disputes. As advocates, we will tend to argue for judicial restraint when that serves our clients’ interest and for activism when the converse is true. The argument that there is no such thing as judicial "activism" ultimately disserves the public, the Bar and the courts. I believe we need a richer, more nuanced public discourse on the "proper" exercise of judicial power, not a pretense that courts are bystanders in the process of social change. Charles Putnam
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