Last week, David Blankenhorn at the Family Scholars Blog took umbrage at this sentence in a Times op-ed:
David resents the implication “that opponents of SSM view any decision that they like as proper, and any decision that they don’t like as the work of ‘activist judges.'” Instead, David claims, “To get called an ‘activist judge,’ you have to try (for whatever reason) to substitute a court’s decision for a legislature’s decision.”
If David were correct – that judges who “for whatever reason” substitute their judgement for a legislature’s are called “activist” – then the same conservatives who called Goodridge (the Massachusetts decision in favor of gay marriage) “judicial activism” would also be criticizing decisions like Boy Scouts of America v. Dale (which substituted the Court’s decision for that of the New Jersey legislature’s), United States v. Morrison (which invalidated parts of the Violence Against Women Act), United States v. Lopez (which invalidated the Gun Free School Zones Act), Printz v. United States (which invalidated the Brady Gun Bill), Alabama v. Garrett (invalidating parts of the Americans with Disabilities Act), Kimel v. Florida Board of Regents (invalidating parts of the Age and Discrimination in Employment Act), and so on and so on.
All of these are examples of “substitut[ing] a court’s decision for a legislature’s decision.” All of them are decisions that favored Conservative political preferences. None of them have been derided by conservatives as “judicial activism.” Clearly, David is mistaken in his analysis of what “judcial activism” means. (For the record, I’m not saying David is writing in bad faith, just that he’s in error).
Personally, I think the definition that David inferred from the Times is more on the mark: a “judicial activist” decision is one that conservatives disagree with. And that’s all the term means.
RELATED: Lucia also posted a response to David’s post, although she took a very different approach than I did.
I think where conservatives say “activist judges” they speak of judge’s who will “broadly” interpret the Constitution to ensure a law is overturned. I think the better argument is whether the judge is consistent in “their(?)” approach. Are they for original intent (strict constructionists) or are they for the flowing Constitution (broad constructionists). If you change your theory to fit a specific “political agenda” then it is being an activist judge. I don’t think there have been instances of misapplication or inconsistent applications of the law by judges. However, that is what everyone would have you believe.
Better? Thanks Amp :-)
well, it’s just like the term “politically correct.” just about every political group/persuasion has standards as to what’s pc and what isn’t for their particular group. but to hear conservatives talk, ONLY liberals can be pc. *rolls eyes*
As far as I know, there is no genuine, commonly-accepted definition of “judicial activisim”. Rather, as your post deftly demonstrates, it is a term of convenience applied to delegitimize a certain category of decisions with which the person using the term (usually but not necessarily a conservative) disagrees.
I suspect that, as the right takes over the judiciary, we will hear less and less about judicial activism, just as states’ rights has ceased to be an issue for the right since they took over Congress (witness Bush v. Gore or the Bush administration’s efforts to preempt state environmental regulations). Again, your post provides a good list of examples of the right’s waning interest in complaining about “judicial activism”.
Oops. Please don’t click through to link in my prior post — I mistyped a letter and it appears to be some kind of weird religious site. Creepy!
Well said, JS.
Also, people who go against tradition (for whatever reason) tend to be labeled activists. Conservatives tend to fall in line with more traditional beliefs; therefore, liberals tend to be the ones labeled “activist” more often. I assure you it is not because conservatives cry more than liberals whenever they don’t get their way.
dana >>but to hear conservatives talk, ONLY liberals can be pc. *rolls eyes*
If your larger point is that some conservatives try to supress speech, or force people to fall in line, that is true. Some members of all groups try to do that– it seems to be the curse of politics.
But in fairness, conservatives get a pass on the term “PC” label liberals coined it, and self applied it. Words gain their use through application.
I’ll admit, we’d have to consult a linguist to be sure of the origin. I’ll explain based on my memory of how the word came to be used. (If someone remembers something else, pipe up.)
I entered grad school in 1982. I began to read the Daily Illini. At a certain point, my office mates and I began to read terms like “must be politically correct” in personal ads. When we first read the term, we consulted asking each other “Which politics are the ‘correct’ ones?”
Hey, we were engineers– so likely to hear a term later than some other people! But we did read newspapers etc. The word was not being widely used, and until we read quite a few examples that actually mentioned some political views we weren’t sure which views the writer meant when they said “politically correct”. The users were liberal, and meant “liberal”.
One thing we knew for sure, however, was that the term was self applied. (We also predicted at the time, that the term would fall into derision, since it obviously implies that others are “politically incorrect” and it does so by use of a label instead of an argument. )
So, as far as I can tell, “PC” has come to apply to liberal views because that is how it was coined.
One lesson to learn from PC: You really need to think about a term before you start labeling yourself.
Lucia, my memory – from the mid-eighties, when I first entered college – is that PC was at that time used as mainly as an ironic, self-mocking term by leftists.
I found this expose of Politically Correct Politically Correct.
One interesting historical perspective was that it was coined by some Communist Party (CP) members in the 60’s who were converted to staunch anti-communists or (PC).
Lucia — I think you got information later because you were an Illini engineer instead of a Boilermaker engineer. Hail Purdue.
Well.. then the one thing that matches in our memory is that it was self applied!
Now, I really am interested in the origin and evolution of the term. I know we were reading the personals in question between late 1982 and June 1984. (Because I began grad school in Jan 1982, and I married and also moved offices to another building in 1984.)
Plus, it was new– so the meaning and use would have been unstable.
I don’t know if the term was self mocking as used in Daily Illini personals at the time. (It’s hard to tell from personals.) Nowadays, the term definitely is either self mocking or derisive depending on who uses it.
It would be interesting to hear how it was used in other parts of the country. I was in Illinois. (Not the vanguard of new political terms….) Were you in Oregon?
…. running off to google search on this term….LOL!
No, at the time I was living in PC central – attending college in Oberlin, Ohio.
It wasn’t self-applied so much as applied to a particular subset of the left. Not “we are PC,” but “those loudmouths at the Students for the Environment meeting, who call you a fascist if you don’t recycle everything, are PC.”
My earliest recollection of the term “PC” being used was among Princeton poli-sci grad students. As with Amp’s and lucia’s recollection, it was a self-applied term, and often not without ironic implication.
That was in the early 1980’s, FTR.
I did look around and read quite a few discussions of the use PC. The term was used as early as the 1930s, but not in the sense we use it now. (There were some maoist senses.) This particular liguists discussion board, provides a bulleted list of usages. Number (4) seems to match what I was noting in the Daily Illini around 1982-1984:
(4) later NA leftist usage: “PC” means to behave in an appropriate fashion, even if there is no official policy at stake (examples of this usage found as late as mid-80s) (bold mine)
Number (5) seems to be what Amp notes:
(5) leftist/centrist sarcastic usage: “PC” means to be too dictatorial about appropriate behavior in others (earliest anecdotes go back to 70s, perhaps dominant usage by 1985 — still may be used this way on occasion, even in mainstream press)
But my favorite usage description was (6):
(6) current usages: see your local media
This, of course, suggests the meaning of the term is still evolving rapidly!
Out of curiosity, I googled for “activist judges” on liguist boards….(I can find it in encyclopedieas and dictionaries, but not liguist discussion threads. )
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