Patterico's Pontifications


Justice Antonin Scalia: The Continued Bulwark Against Judicial Activism

Filed under: Court Decisions,General,Judiciary,Law — Justin Levine @ 4:21 am

[posted by Justin Levine]

In case you missed the Supreme Court decision in Dada v. Mukasey [PDF], Scalia puts on another clinic regarding judicial activism in his dissent.

There have been a lot of attempts recently to distort the meaning of judicial activism, or simply waive the phrase away as supposedly being ‘meaningless’ – but Scalia continues to point the way. (I would dare suggest that people have no real adequate response to Scalia’s challenge, thus they knowingly distort the meaning of judicial activism in order to muddy the issue.)

Admittedly, the issue isn’t always simple (particularly when trying to weigh straightforward textual solutions against non-textual, but long standing precedents) – but that is no reason to equate judicial activism with ‘any decision one happens to disagree with’.

As a starting point, judicial activism is:

NOT based on how often a court strikes down Congressional or state laws.

NOT based on how popular or unpopular an outcome might be in the minds of voters.

NOT based on who appointed the ruling judges. (i.e., The common non sequitur that one hears from those who can’t debate the issue of judicial activism: ‘The judges who voted for the decision were all appointed by Republicans, therefore by definition, the decision cannot be considered ‘activist’.)

These issues have absolutely nothing to do with the debate over judicial activism. They never have, and never will.

The initial test for judicial activism can be summed up in a fairly straightforward manner:

1. Does the outcome derive directly from the text of the law (statute or Constitution).

2. Is the interpretation of the text reasonable.

Point # 1 explored – [Apart from well known and accepted common law going back hundreds of years] Courts should be able to cite the specific text of the law, and draw conclusions directly from it without the need for additional steps. When the Supreme Court decides a case primarily by further interpreting one of its own past decisions rather than the text of the (Congressional, state or Constitutional) law, chances are that it is in activist mode. Supreme Court decisions are interpretations of the law – but that is very different from the law itself. Once you start basing outcomes on past judicial decisions instead of directly from the law’s text itself, you become stuck with an interpretation of an interpretation – becoming further and further removed from the law’s base and causing distortions in it.

Point # 2 explored – The interpretation of the law’s text must be reasonable. How does one have an ‘unreasonable’ interpretation of the text? By interpreting it either too narrowly to give the law any practical effect, or too broadly such that it deprives it of any practical meaning.

A popular example of interpreting text too broadly was the infamous Kelo decision that interpreted the phrase ‘public use’ so broadly as to be practically meaningless. (Many proponents of judicial activism still decried the Kelo decision due to its practical outcome, but they regretfully did so for the wrong reasons, thus helping to ensure that similarly flawed decisions will likely continue in the future).

Naturally, there can be disagreements in this debate over what is ‘reasonable’ in particular instances. So I don’t at all mean to suggest that the judicial activism debate is so cut and dry that it easily dictates the outcomes of all cases. But I would still maintain that the debate still needs to take place within the realms of points # 1 & 2 above, without the clearly fraudulent definitions relating to Republican appointees, deference to Congress/popular will, etc.

So with that primer out of the way, please enjoy another example from the Scalia School of Anti-Judicial Activism (taken from the last paragraph of his dissent in Dada v. Mukasey) [PDF at page 33 of the file]:

In the final analysis, the Court’s entire approach to interpreting the statutory scheme can be summed up in this sentence from its opinion: “Allowing aliens to with- draw from their voluntary departure agreements [ ] establishes a greater probability that their motions to reopen will be considered.” Ante, at 19. That is true enough. What does not appear from the Court’s opinion, however, is the source of the Court’s authority to increase that probability in flat contradiction to the text of the statute. Just as the Government can (absent some other statutory restriction) relieve criminal defendants of their plea agreements for one reason or another, the Government may well be able to let aliens who have agreed to depart the country voluntarily repudiate their agreements. This Court lacks such authority, and nothing in the statute remotely dictates the result that today’s judgment decrees. I would affirm the judgment of the Court of Appeals.

Here endeth the lesson.

[posted by Justin Levine]

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