I suspect that a lot of people will see the subtitle of this book and instinctively decide that they disagree with what is inside (although I hope it will prompt them to pick up the book and read it). That is because “judicial activism” today is the universal pejorative, the one thing that liberals and conservatives agree is wrong, even if they disagree over what it is.
Who on Earth possibly could stand up for judicial activism? The moniker conjures images of imperious jurists in marble temples sitting in judgment on matters rightly consigned to democratic proc- esses, bereft of constitutional constraint and subject only to their own hubristic whims.
Indeed, over the past 75 years or so, we have seen abundant examples of precisely that type of judicial arrogance, in which judges literally invent new constitutional or statutory rights out of thin air, exercise sweeping powers that belong to other branches of govern- ment, and act as if completely unbound to any type of constitutional moorings. Such examples of judicial activism—or, more accurately, as my friend Gene Meyer suggests, “judicial lawlessness”—deserve contempt, for they do extreme damage to the integrity of the judi- ciary and to the rule of law that undergirds a free society.
But increasingly, many today on both the right and the left define judicial activism in simpler terms, as the act of courts striking down laws enacted by the democratic branches. Thus defined, and still cast in a pejorative manner, the term suggests that courts ought routinely to defer to the elected branches of government (or, for that matter, to the many unelected officials who actually create and apply most of the laws and regulations that govern us today).
To the notion, clothed in that conventional wisdom, that judges ought to defer to the elected branches of government, this book posits two questions: why and to what effect? Americans do not live in a pure democracy where the majority rules, much less where powerful and highly motivated special interests are entitled to