As I watched the recent Sotomayor confirmation hearings, I reached the conclusion that conservatives — at times — can oversimplify the definition of judicial activism.  This oversimplification gives credence to those who brush aside judicial activism, i.e., those who say it is merely what one side accuses the other of when they disagree with each other.

Senator Kyl’s questioning on day two provides a good example of this oversimplification.

And has it been your experience that every case, no matter how tenuous it’s been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it [can] make? Some precedent that he’s cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something.

. . .

I can’t imagine that the answer would be otherwise than, yes, you’ve always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be.

. . .

I’m simply confirming . . . that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren’t cases directly on point. That’s true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

This questioning is troubling because it simplifies the idea of judicial activism to such an extent that its meaning is distorted and as a result misunderstood. 

Rather than argue over the correct definition of judicial activism, which has been debated and blogged about extensively, I write to point out that oversimplifications, such as the one above, are troubling.

Courts of last resort — state or federal — exist to develop the law as opposed to intermediate courts, which are error-correcting courts that ideally do not develop, create, or change law.  If a decision must have a “basis in the law,” i.e., rely on a statute, common law, or a law review article, how can decisions that develop the law NOT be activist?  While presumably not all law-developing decisions lack a “basis in the law” such as those that apply precedent to new factual situations,  it is conceivable that at least some law development occurs without a “basis in the law” as that phrase is defined by the senator.  Answers to questions of first impression may not have a “basis in the law.”  For example, a statute may set forth “the what” but not set forth “the when,” and as a result, a court may have to fill in the missing piece.  If it were true that answering questions of first impression were largely activist, then early decisions in this country and even those in England must have been predominantly activist decisions.    

Now perhaps the Senator’s questioning highlights a poor choice of words rather than a misunderstanding of judicial activism, but regardless, an adjustment is necessary.  When descriptions of judicial activism are broadened as the senator has done, it lends support to those persons who claim judicial activism does not exist.  The Senator’s definition opens the door to call any case of first impression activist because his definition lacks any standard by which to analyze if a decision is activist and it ignores the realities of a court of last resort.  As a result, his definition allows someone to label a decision activist simply because he or she would not have developed the law in that manner. 

Cases of first impression however, are not all activist decisions.  This is true even if there is no governing statute or any case law to guide the decision.  To avoid activism, courts should decide cases in a manner that respects the role of the judiciary.  As stated in Federalist # 78, “[t]he interpretation of the laws is the proper and peculiar province of the courts.”  “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.”     

As such, a decision of first impression, or any decision for that matter, can likely avoid the activist label if:

1)      The decision does not ignore authority that could be used to guide the decision.

2)      The decision is a modest decision that takes incremental steps rather than giant leaps that lead to unnecessarily sweeping changes in the law.

3)      The decision is one that allows the legislature to appropriately modify or “correct” the court’s decision of first impression.

4)      The decision does not decide issues of first impression unnecessarily.

In conclusion, oversimplifying judicial activism can lead to troubling results, and thus, we should avoid these oversimplifications and search for a better way to ask the question.  For example, a better way may be to ask if an individual has ever decided a case without relying on any legal principle.  Later questioning by the Senator seemingly moved in this direction when he stated, “[h]ave you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?”