The Two Faces of Judicial Activism
WILLIAM WAYNE JUSTICE Judge, United States District Court, Eastern District of Texas
For the past 20 years, every United States Supreme Court nominee has come with a presidential warranty that he or she will be a jurist who interprets the law rather than makes it. It has become commonplace for political office- seekers and officeholders of all ideological stripes to make "judicial activism" the target of much demagogic bluster. Several of my own decisions have been made into campaign issues in Texas gubernatorial races and numerous local political contests. Indeed, . . . East Texans are casting their ballots in a primary election in which one of the candidates for State Representative has expended considerable rhetoric condemning the consent decrees and orders I approved and issued in the prison reform case of Ruiz v. Estelle. 1
What has been missing from much of this verbal attack is the clear identification of its subject. "Judicial activism" is, more often than not, a code word used to induce public disapproval of a court action that a politician opposes but is powerless to overturn. In most cases, the mindless incantation of this phrase amounts to a political ritual, which touches the congregation of voters on an emotional level without provoking any reasoned discourse among them. Even within the legal profession, defenders and decriers of "judicial activism" sometimes fail to see the need to explain just what it is they are debating.
Because my name has appeared on the "ten most-wanted list" of judicial activists for much of my nearly quarter-century on the bench, I have found it worthwhile to devote some thought to the essential elements of this offense. The charge of judicial activism conflates and confuses two quite distinct juridical activities. On the one hand, this label has been applied to decisions whereby judicial precedents or statutory schemes are overturned based on the constitutional values determined by the judges considering the case. 2 On the other hand, the term "judicial activism" is used to describe the ex-