Mitch wrote here about recent remarks by Kevin Gutzman regarding judicial activism. Here are some thoughts on what was discussed.
The Good
Much depends on how one defines judicial activism–it has been used by both conservatives and liberals to criticize courts. In his remarks, Gutzman properly argues that striking down a law as unconstitutional isn’t judicial activism. For my purposes, and I think the way the term is properly understood, judicial activism is ruling on cases without any concern for the law but based on personal preferences.
If Congress passes a law that is unconstitutional, it is the court’s duty to strike it down. A court isn’t being judicially active by not deferring to Congress as to what is constitutional.
As for respecting past precedent, there is a level of judicial activism when not respecting past decisions. This doesn’t make it wrong or even a “judicial activist decision.”
In fact, by completely disregarding the Constitution in favor of past precedent, this could be an even worse example of judicial activism. I have no idea why respecting stare decisis is somehow more important than not fixing a clear misinterpretation of the Constitution. Having said that, the principle of stare decisis (respecting past precedent) is critical for our judicial system by helping to ensure judges don’t reinvent the wheel, and to promote predicitability in the law.
The Bad
The discussion about cruel and unusual punishment is shallow and to suggest Justice Kennedy (not exacty my favorite Justice) didn’t think child rape was a big deal is inappropriate.
How do judges figure out whether it is cruel and unusual punishment to apply the death penalty for child rapists? Gutzman looks to the original intent and because “[t]here is no indication that it was considered ‘cruel and unusual’ in 1791,” that means it is OK. That is an absurd argument. You can’t figure out their intent by showing there’s no evidence of their intent. There simply is not a strong basis to know what the founders thought on this issue.
The other way to figure out what “cruel and unusual” means is to look at societal norms. Gutzman even addresses this by arguing that Kennedy was wrong in determining what the social consensus was when considering the case in 2008. He mentions state laws that allowed the death penalty for child rape as did federal law (I don’t agree with that assessment of state and federal law, but I don’t have the time to review it any more than this).
Assuming that there were some state laws in place, and even a federal law, this isn’t necessarily dispositive of the issue. Although,Congressional legislation does provide serious ammunition against the argument that the penalty is not socially acceptable.
Getting into all these arguments is actually support for the complexity of determining what is “cruel and unusual” and against the oversimplification of using originalism to come out with the “answer.”
Worse though, Gutzman argues that Kennedy’s actions were an example of judicial activism. Once again we see conservatives abusing the term just like liberals. Kennedy was analyzing a tricky provision and while some may not agree with his conclusion, it was grounded in law. It just so happens that interpreting “cruel and unusual” requires going beyond the plain text of the Constitution or the possible understanding of the founders.
