The limits - and reality - of judicial activism and restraint

There has been another round of commentary on the topic of judicial activism at the close of the Supreme Court's term. I have said that I don't like the term and would prefer another, but the conventions of the dialogue seem to stick us with it.

Nationally, public commentators like E.J. Dionne and Dahlia Lithwick repeat now overworked trope that because conservatives applaud some cases that overrule legislative choices, there is no substance to the concept. We should move on to the policy debate. (And there are policy differences that can't be reduced to "activism" vs. "restraint.")Locally, the idea is repeated here and here. The latter two pain me. Some people just won't accept instruction.

As I and many people smarter than me have tried to explain, the idea that the controversy around activism and restraint can be reduced to deferral to the legislature or executive or to adherence to precedent is an oversimplification. Gerald Bradley, a lawprof at Notre Dame, recently made the point again at Bench Memos:

My tentative (and humble) submission is that "judicial activism" is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation. If not, you have an "activist" at work.

Let's use Heller as an example. The Second Amendment says that " [a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Judges who differ as to whether the prefatory clause "a well regulated militia ..." restricts or, as Scalia argued, merely informs the scope of the operative clause (the right of the people ...) cannot necessarily be characterized as "activist" or "restraintists." If the Constitution creates an individual right to bear arms that the legislature must respect, then it would be "activist", i.e., it would be ignoring what the law requires, to refuse to enforce it.

Thus, one could argue that neither the Scalia majority opinion nor the Stevens dissent are activist. While there are problems with the way that Stevens goes about it, both were after the meaning of the text. Scalia did not ignore the prefatory clause or rewrite the text of the amendment. The question was whether the prefatory clause stated the reason that the right to bear arms was recognized (which, as Scalia carefully explains, helps to define the scope of the right) or does it restrict the right to the context of a militia? Scalia undertook a very careful exegesis of the text and its history in order to find its original public meaning.

On the other hand, Breyer's dissent (in which, to be fair, Stevens joined) adopts a balancing approach to the right to bear arms that essentially allows a judge to do whatever he or she wants. Randy Barnett put it well:

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.