The Roots Of Judicial Activism

JACKI LYDEN, host:

That word that President Obama joked about earlier, it was inescapable after the nomination of Sonia Sotomayor this week.

Unidentified Woman #1: She is pretty clearly a liberal judicial activist.

Unidentified Man #1: She's a liberal activist.

Unidentified Woman #2: A judicial activism lurking in the shadow.

Unidentified Man #2: She's a notorious judicial activist and...

LYDEN: And those were examples heard just on NPR.

To pry open the expression and find out what's lurking inside, we called on Kermit Roosevelt III. He's a law professor at the University of Pennsylvania and the author, a few years back, of "The Myth of Judicial Activism: Making Sense of Supreme Court Decisions."

Welcome, Kermit Roosevelt.

Professor KERMIT ROOSEVELT (Law, University of Pennsylvania; Author, "The Myth of Judicial Activism: Making Sense of Supreme Court Decisions"): Thanks. I'm glad to be here.

LYDEN: Now, we should also point out that you clerked for David Souter. He, of course, is the justice that Sotomayor will replace. Were you surprised to hear the A-bomb, the activist word, dropped so quickly after her name was announced?

Prof. ROOSEVELT: I was surprised. You know, Judge Sotomayor was initially put on the bench by a Republican president - by the first President Bush. And so you would think that she's actually pretty moderate. And that, you know, the fact actually that the line of attack that's being used against her is this activist label I think suggests that it's really just sort of an all purpose term of abuse.

LYDEN: Does the term judicial activism have a concrete meaning? Give us a bit of its history.

Prof. ROOSEVELT: The term itself, I think, comes into use about 60 years ago, but the basic idea has been around for a lot longer. And the basic idea is a judge who's an activist is making decisions not based on the law but based on what that judge thinks is good policy. So, when the Supreme Court in the early 20th Century was striking down progressive laws, President Theodore Roosevelt criticized judges for legislating from the benches, when the Supreme Court was fighting back against Franklin Roosevelt's new deal in the 1930s, he said the same sort of things. In fact, you know, you could go back to Abraham Lincoln who thought the Supreme Court was pro-slavery and criticized those judges for making policy.

LYDEN: What about the Warren Court? I mean, many people think about that period from the early 1950s until the late '60s when Earl Warren was the chief justice as being the time of the most dramatic expanse of judicial power when it came to civil rights.

Prof. ROOSEVELT: Well, I think the reason that the word activism is used so much nowadays is because most people's understanding of the Supreme Court is really still shaped by the Warren Court.

In that era, you had a Supreme Court that was very willing to stand up to Congress. It was willing to stand up to the states when it thought that they were doing something wrong and you did have a very aggressive exercise of judicial power. The court was willing to say, we believe that these are constitutional principles that need judicial protection and we're willing to stand up for them.

So to the extent that people think of the court we have as still the Warren Court, it's natural that the judicial activism charge is going to stick more to the liberals than to the conservatives. The problem, of course, is we don't have the Warren Court anymore. What we have now is a pretty conservative Supreme Court, historically speaking. And since the conservatives are in the majority, they're the ones who have the greater chance to push their own agenda.

LYDEN: Give me a few examples.

Prof. ROOSEVELT: Well to the extent that the term activism has any useful meaning, I think we would say it's, how often does a judge vote to strike down a state or a federal law? And if you ask that question, the answer is that conservatives are actually more activists than the liberals on the current Supreme Court. You'll see this in cases like affirmative action. So there, you know, you've got a pretty vague provision in the Constitution. It doesn't say race shall never be a factor in university admissions, it just says equal protection of the laws. But the conservative justices have said, essentially, race shall never be a factor and they're not getting that from the Constitution, they're getting it, presumably, from their views of good policy and they're saying our views are going to control not the views of the democratically elected representatives.

LYDEN: Kermit Roosevelt III teaches law at the University of Pennsylvania and he's the author of "The Myth of Judicial Activism: Making Sense of Supreme Court Decisions."

Thanks for taking the time.

Prof. ROOSEVELT: Thank you.

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