Activists, judged

I’VE PAID DEARLY FOR MY HLS education, and for that reason I don’t take lightly those who accuse my professors of being “embarrassments.”

Imagine my confusion, then, when I discovered that Professor Laurence Tribe has taken to calling himself “embarrassing.”

Last week, the Boston Globe featured an article entitled “Judging the judges,” which cast a critical eye on President Bush’s State of the Union Address denouncement of “activist judges” who “insist on forcing their arbitrary will upon the people.”

But, as the article highlighted, “judicial activism” is a term that means different things to different people. On that note, Professor Tribe unleashed a harsh attack on anyone who speaks of judicial “activism”:

“It’s almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about,” he said.


If Tribe is right, then he must be one of the most publicly embarrassed people on the Harvard campus. He hardly has shied away from dropping the “A-bomb” in public:

“[S]uffice it to say that such encroachments [on congressional authority] are the antithesis of judicial restraint or modesty; that the justices who have engineered them are the most activist in our history … .” (Senate Testimony, June 26, 2001)

“It’s a very ironic thing, though, to refer to the temper of the times and to the election returns in order to justify what amounts to a form of judicial activism.” (NPR, Jan. 21, 1995)

“The idea that judicial activism should be avoided like the plague has become like a mantra.” (Knight-Ridder News Service, April 1994)

“Ted [Koppel], let me say something about this activist issue. … We already have quite an activist group of judges. Just this week they overruled four decisions. They are not at all interested in preserving the past, necessarily. They have their own agenda … .” (Nightline, June 27, 1991)

“In case you hadn’t noticed, we now have a highly activist Supreme Court. In Buckley v. Valeo, for example, the Burger Court struck down Congress’ one comprehensive attempt to regulate campaign finance by limiting how much those with money can dominate the political process. And [INS] v. Chadha, in one fell swoop, struck down more acts of Congress than all preceding Supreme Courts combined had done in all their days – and did so for rather wooden and formalistic reasons. Regan v. Wald, too, was an activist decision, insofar as it paid little real attention to the manifest intentions of Congress in cutting back executive power in 1977. (Hastings Law Review, 1984)

So many “embarrassing” comments! Lest I sit silently while a Harvard professor publicly attacks his own good name, I’m left with the task of defending Laurence Tribe against accusations by Laurence Tribe:

Not all opponents of “activism” are created equal. One side denounces judges who honor the constitutional limitations on the power of the Courts and Congress; the other denounces judges who deny Congress plenary power over all political questions.

To those who call judges “activist” for striking down Congressional expansion of power beyond its Article I limitations, the Rehnquist Court, in striking down almost 30 acts of Congress in 10 years, has become the epitome of an “activist” court.

To those who call judges “activist” for reading expanded rights into the Constitution, thereby encroaching upon the power of the States, the Warren and Lochner Courts were the epitome of “activist” courts – and Roe v. Wade the epitome of an “activist” decision.

The first brand of activism (“Rehnquist Activism,” I’ll say) confronts the power of Congress – powers that are specifically enumerated and limited by the text of the Constitution. The second brand of activism (“Warren Activism,” I’ll say) confronts the power of the States – powers that are specifically not enumerated per the Tenth Amendment, and limited only to the extent that they conflict with enumerated Federal powers or the rights embodied by Constitutional Amendments. The battle of dueling “activisms” is a battle of Constitutional interpretations.

The Boston Globe article called “judicial activism” a “ubiquitous epithet.” Indeed it is, but only because it embodies for both sides of the legal debate a violation of the critical legal and political equilibrium: the appropriate apportionment of power among Congress, the courts, and the states. “Judicial activism” is so powerful a term because it embodies for both sides a fundamental sin: overreaching by one branch or level of government against the others.

In downplaying the differences between the versions of “activism,” liberal jurists and scholars attempt to hide the difference between Originalist and expansionist interpretations of the constitution. They muddy the waters only to throw up their hands and exclaim, “These words mean nothing anymore!”

Professor Tribe’s newfound denouncement of the term comes at a fortuitous time for him. Now (by contrast to the 1990s) his preferred “activists” are quite active. They rule the day on the Supreme Court and in Massachusetts. (Tribe, a fan of recent developments in these courts, has called the Massachusetts gay-marriage opinion “a masterpiece.”) It’s quite a convenient time for him to want to remove charges of “activism” from the debate.

Dare I say, this is not the time to ignore “activism.” It is a time to identify the dueling brands of “activism,” to evaluate them, and to resolve precisely what apportionment of power among the courts, Congress, and States is appropriate. Let’s sort out which form of “activism” is wrong under the Constitution, and seek to eradicate it.

Professor Tribe, don’t be so embarrassed of “judicial activism” debates. They’re a productive, valuable endeavor.

But as for your newfound eagerness to disparage debate on “judicial activism” at the precise moment when your preferred brand of activism is most rampant – you should be embarrassed.

Adam White is the editorial page editor of The Record.




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