Patterico's Pontifications


Whelan Bashes Sunstein and Miles Piece on Judicial Activism

Filed under: Dog Trainer,General — Patterico @ 5:53 am

Ed Whelan takes to the pages of the Los Angeles Times this morning to bash that Sunstein and Miles piece on judicial activism that I criticized here and here.

Ed’s most valuable contribution is to put the Sunstein and Miles piece in its proper context, noting that it is but a small volley in the war “to try to defuse the charge of liberal judicial activism” by advancing “shoddy” arguments that redefine “activism” to allow the charge to be leveled at conservative judges.

Ed notes that Sunstein and Miles’s analysis of agency actions has nothing to do with the real problem most Americans have with judicial activism: namely, the left’s use of the courts as the battleground in a culture war that should more appropriately be fought in the legislative arena. The public’s disappointment with judicial activism is a negative reaction to illegitimate court decisions that have “entrenched the left’s agenda on such issues as abortion, the death penalty, pornography, marriage, criminal rights and radical secularism.” This judicial power grab has undermined Americans’ efforts to advance their views on these issues by seeking passage of laws through the democratic process.

The invalidation of these laws by activist leftist judges has little in common with the reversal of bureaucratic agency actions discussed in Sunstein and Miles’s piece. Unlike legislators, bureaucrats are not directly accountable to the people. Moreover,

unlike a Supreme Court ruling that finds a federal or state law unconstitutional, a ruling that invalidates federal agency action as contrary to statute does not end the political processes. On the contrary, Congress is free to revise statutory law to permit or even require the same agency action. Further, in the frequent instances in which the agency has merely failed to follow proper procedures, the agency itself is free to redo its work and achieve the same result.

Having placed the argument in its proper context, Ed makes some points that I made in my previous posts. But Ed makes these points in a far more powerful and articulate fashion. For example, I argued that Sunstein and Miles’s piece is

another one of those pointless exercises that tries to measure “activism” and “partisanship” with studies that purport to be “objective” while ignoring the real issue: are judges deciding cases correctly?

Ed says:

Even on their own narrow administrative turf, Miles’ and Sunstein use a defective approach. They classify rulings as “restrained” or “activist” without regard to any qualitatitive assessment of whether the ruling is correct.

I also criticized the notion of classifying opposition to agency decisions under review as “partisan,” asking: “what if all the [agency] decisions [the courts] are looking at are really liberal?” Ed’s argument along these lines is classic Whelan:

[Sunstein and Miles] implicitly presume that the work product of federal bureaucrats is politically neutral. Only ivory-tower academics unfamiliar with, or blissfully inattentive to, the ways of Washington would make this presumption. If an agency shows a bias in a particular direction, a neutral judge’s decisions overruling that agency’s actions would of course show a pattern in the opposite direction. Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction, the “Partisan Voting Award” that Miles and Sunstein would confer on Justice Thomas instead belongs to the agencies.

Very well said.

Ed makes several other excellent points in the piece, which you should read in its entirety.

Kudos to L.A. Times editors for giving Ed the space to do this effective rebuttal.

7 Responses to “Whelan Bashes Sunstein and Miles Piece on Judicial Activism”

  1. When you make reference to “the public’s disappointment with judicial activism,” which public are you speaking of and which judicial activism?

    Passing it off to the legislature is like that old cereal commerical “Give it to Mikey — he’ll eat anything.”

    As always the wheels of “justice” (the official kind) grind with infinite slowness as actual humankind moves on regardless.

    David Ehrenstein (b743cb)

  2. TO say that agreeing with government agencies is non-partisan is to say that statist attitudes are non-partisan and that being non-statist is partisan. Not a real big surprise that Thomas comes off as partisan in that analysis.

    An uncommonly silly criterion.

    Kevin Murphy (0b2493)

  3. they classify rulings as “restrained” or “activist” without regard to any qualitative assessment of whether the rulings are correct.

    that’s because they’re looking for a neutral metric free of observer bias. the alternative would be to classify rulings as “restrained” or “activist” based on whether the observer agrees with them, an approach which is unlikely to contribute to the science of jurisprudence.

    assistant devil's advocate (82629f)

  4. Trackbacked by The Thunder Run – Web Reconnaissance for 10/24/2007
    A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  5. Agree with Asst Devil’s Advocate. Since appellate judges are dealing with situations where there may be several “correct” answers, arbitrarily deciding that any decision you disagree with is hence the product of an “activist” judge, creates an ideological definition of the term, devoid of any substantive meaning in the jurisprudential context. The Sunstein formulation is at least a good-faith attempt to give the term a meaning beyond partisan ideology.

    Steve Smith (44efd2)

  6. Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia…

    A missing bit of disclosure?

    alphie (99bc18)

  7. Anyone who seriously thinks this was a legitimate effort to add value to the “science” of academe, and not just another cheap effort to score a political point, should kindly explain Sunstein’s choice of labels. After all, a judge’s tendency to agree or disagree with an administrative body’s interpretation of a law has zero/zip/nada with most people’s concept of judicial “activism” vs. “restraint,” so why use such politically charged terms (“independent thinker” vs. “apparatchik,” anyone?) unless obfuscation is the goal?

    The answer, of course, is clear: Sunstein didn’t measure X to prove X, he measured X and cast X in disingenuous terminology to “prove” Y. Had he been honest and upfront about the fact he was measuring X, and that his study had nothing whatsoever to do with Y, no major newspaper would have considered the story newsworthy. I can just hear the reaction now: “Conservative judges disagree with unbarred, unelected regulators more frequently than moderate and liberal judges do? Stop the presses!”

    Xrlq (6c2116)

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