Who's Afraid of the Big Bad Activist?

08/16/2009 05:12 am ET | Updated May 25, 2011

As in every Supreme Court confirmation hearing, in Judge Sonia Sotomayor's questioning before the Senate yesterday, accusations of "judicial activism" are flying thick and fast. But what exactly is this thing called "judicial activism" that everyone seems so worried about? Yesterday, both Senator Orrin Hatch as well as an op-ed in the Wall Street Journal proposed a definition - that a judicial activist is someone who decides cases based on personal biases and other sources rather than on the law itself. WSJ then argued that under their definition, Supreme Court nominee Sonia Sotomayor is an activist in sheep's clothing. But this so-called "definition" is so vague as to be absolutely subjective - of course, a judge will always say that a particular decision is based on the law, and a critic of that decision will always claim that it's not. As the Sotomayor hearings draw to a close, it's now especially important to do two things: look carefully at her record, and figure out what it is that we mean when we say "activist."

The Brennan Center released a report on Judge Sotomayor's record that hopes to cut through this haze, both by injecting hard data and objective measures into the conversation, but also by making clear that there is nothing inherently wrong with judicial actions traditionally categorized as "activist."

Striking down governmental action on constitutional grounds is the most commonly employed objective measure of "activism." To compare Judge Sotomayor's record against her peers, the Brennan Center reviewed every constitutional case the Second Circuit has decided in the past ten years - nearly 1,200 cases. Among other findings, the numbers make clear that judges on the Second Circuit - a court with roughly equal numbers of Democratic and Republican appointees - strike down governmental action routinely, unanimously, and on a bipartisan basis, in nearly one-fifth of their constitutional decisions.

Judge Sotomayor has struck down governmental action only marginally more frequently than the Second Circuit average (any difference is not statistically significant), and such decisions have been joined by judges on both sides of the ideological spectrum nearly 90% of the time. Given that her constitutional decisions have been unanimous over 94% of the time and that she has been in the majority over 98% of the time, to call Judge Sotomayor "out of the mainstream" seems to have no basis in her record.

More fundamentally, the report illuminates that "activism" - in the sense of holding governmental action unconstitutional - is nothing to froth over, but is simply part of the daily business of judging. Constitutional law is complicated stuff, and legislatures and governmental officers frequently get it wrong. It is the role of judges to serve as a necessary corrective against governmental overstepping of constitutional boundaries in our system of checks and balances.

For a federal judge - out of an excess of "judicial restraint" - to uphold a governmental action that violates the Constitution would be a dereliction of constitutional duty every bit as much as striking down a valid law. One of "judicial restraint's" dirtiest secrets is the Supreme Court's decision in Korematsu v. U.S., which upheld the mass internment of citizens of Japanese-American decent - a decision which is still on the books. As Justice Jackson's passionate dissent makes clear, a decision to uphold a constitutional action can have a corrosive effect on the body of U.S. law by stamping a Supreme Court seal of approval on actions that violate constitutional principles.

A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.

Justice Jackson's prophecy came true with respect to present-day disputes over military detainees. Arguably due to a lack of "judicial activism", the spawn of Korematsu still haunt U.S. law.

In all the hullabaloo about so-called "judicial activism," wouldn't it be refreshing to hear some questions about "judicial passivism" as well?

Monica Youn in as an attorney at the Brennan Center for Justice at NYU School of Law and author of Judge Sotomayor's Record in Constitutional Cases.