As I argue in America's Prophets, the phrase judicial activism doesn't really mean anything at all, because people use the phrase simply to identify decisions they do not like. For example, most people who refer to Roe v Wade as activist have probably never even read Justice Blackmun's opinion. They are perforce not criticizing the Court's reasoning; they are simply objecting to the result.
But if judicial activism means anything, it means a method of analysis that seeks to identify broad and general principles as a basis for deciding individual cases. Principles and values have an infinite number of levels. At very high and very low levels of generality - in other words, when we either articulate the principle very generally, or very specifically - there is usually widespread agreement about what the principle means or requires. Consider, for example, the concept of privacy. Most Americans would agree, as a general matter, that the Constitution guarantees a right of privacy. At a high level of generality, this principle means that we are entitled to live our lives in a manner of our choosing. We would also likely find widespread agreement if we were to examine highly specific iterations of this principle. For example, if we were to ask whether the government can compel Americans to watch C-SPAN on Tuesday nights rather than American Idol, nearly all people would say no; our right of privacy gives us the right to watch whatever shows we want, or none at all.
But between these two extremes - when we ask a question that is neither very general nor very specific - we find disagreement. For example: Does the fact that you live in whatever state you want also mean that you can drive without a seatbelt? Does the fact you can eat cold pizza for breakfast instead of bran flakes also mean you can use heroin in the privacy of your own home?
Answering these questions - and these are the questions judges must answer - is not a matter simply of logic. It is a matter of drawing lines; and how one chooses to draw lines is affected by one's beliefs, knowledge and experience. Today, virtually all judges agree that the right of privacy means that a black person and a white person can choose to marry one another if they want to, but less than half a century ago, there was vitriolic disagreement about that very issue. The principle - privacy - has not changed between then and now; what has changed is our understanding of how the principle operates and our understanding of the facts that are relevant to the issue.
How one understands legal principles and values very much depends on one's own values, education and - yes - experience. When Senator Mitch McConnell, the Senate's leading Republican, suggested that Justice Sotomayor is unfit to sit on the high court, he explained himself by saying that "she has said her experiences will affect the facts she chooses to see as a judge." But all judges, like all human beings, are products of their experience. If we are to take Senator McConnell at his word, he voted against the first Hispanic nominated to serve on the nation's highest court because then-Judge Sotomayor acknowledged that she is human.
Even Justice Scalia knows that one's experience cannot be untangled from one's ideas. Which facts one sees, and how one sees them, are shaped by one's own history - that is, by one's own experience. Consider as an example the case of Bradwell v. State of Illinois, in which the Supreme Court infamously upheld the constitutionality of a state law that prohibited women from being lawyers. Justice Joseph Bradley wrote the Court's opinion, writing that "nature herself [makes] the female sex . . . unfit[] for many of the occupations of civil life." If God did not want women practicing law, then surely Illinois could uphold that divine injunction.
More than a century later the Court confronted a Virginia law that prohibited women from attending the prestigious Virginia Military Institute (VMI). Justice Ruth Bader Ginsburg, who herself had been denied a clerkship on the Supreme Court because of her gender, wrote the opinion for the Court striking down the Virginia law. Justice Scalia wrote a dissent, in which he had this to say:
Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. [Emphasis added.]
Justice Scalia understood that Justice Bradley saw the world the way he did because he considered it undebatable that nature had designed women for domesticity. And Justice Scalia further understood that we are all like Justice Bradley: inhabitants of a world where our experiences influence which issues we consider debatable and which brook no debate.
Justice Ginsburg had a different experience from Justice Scalia. She viewed the exclusion of women from VMI as part of the same history that Justice Bradley invoked when he concluded that a state could bar a woman from the bar. Justice Scalia focused on a different constellation of facts. He believed the Constitution permitted Virginia to adhere "to such old-fashioned concepts as manly ‘honor'." Whereas Justice Ginsburg (and the Court's majority) saw the perpetuation of bias in the maintenance of this single-sex institution, Justice Scalia saw chivalry and a gentleman's code.
Judges have to choose which facts matter. That choice is affected by their experiences, but it is also affected by the way they understand legal principles - which is itself a function of experience. In the VMI case, Justice Ginsburg was faithful to a value that lies at the core of American democracy. She was faithful to the idea of equality. I argue in America's Prophets that so-called judicial activists are judges who are most faithful to the central values of liberty and equality. I show that, like the prophets of the Hebrew Bible, judicial activists are the judges who are most willing to protect these central values even when it is unpopular to do so.
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