New Article in Townhall Magazine: "Holding the Line"

Judicial activism is the subject of the cover story in this month’s Townhall Magazine. The article, by Committee for Justice Executive Director Curt Levey, attempts to cut through efforts to “blur and distort the definition of judicial activism” by clarifying, in layman’s terms, what judicial activism is and what it is not. Levey notes that


“[T]he purveyors of judicial activism – and its handmaiden, the ‘living Constitution’ – try hard to blur the distinction between activist and legitimate court decisions. So it’s important to clarify that true judicial activism is marked by the elevation of a judge’s policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the common sense meaning or original intent of the constitutional or statutory text at issue.”


The article lays out the common forms of judicial activism – construing black as white, twisting legal doctrines beyond recognition, inventing new rights, ignoring old rights, and playing policymaker – while providing examples of each. It then tackles popular but misguided definitions of judicial activism, explaining that a court’s decision is not necessarily activist because it 1.) overturns actions by the other branches of government, 2.) doesn’t follow precedent, and, 3.) arguably should have gone the other way, or 4) angers conservatives.


“Conservatives have every reason to be angry about judicial activism,” Levey notes, “but they handicap the battle against it when they overuse the term.” Of course, conservative judges are sometimes guilty of activism themselves. But for the most part,