Judicial “Activism”

activism. “the doctrine or practice of vigorous action or involvement as a meansof achieving political or other goals, sometimes by demonstrations,protests, etc.” —dictionary.com

“Judicial activism” has become a common phrase used to describe the handing down of progressive decisions from courts. It’s specifically coming back into play, even from the progressive side, with the gay marriage arguments being heard by the Supreme Court at this moment. But it’s another example of distortion through language, of pushing a loaded phrase into common parlance so that even those who don’t agree with it in principle end up using it, and the connotations of the phrase follow it around.

The definition above shows just how loaded, and how wrong in context, the phrase is. Three big points here:

* “Vigorous action or involvement.” People who are actually activists are people who take action, who organize campaigns or participate in protests. There are activist groups and organizations who are specifically organized to take action toward specific goals. But judges can only rule on the cases that are brought before them, and the court is not organized to take action toward goals (more on this later). So the term “activist” is inaccurate as applied to a judge handing down a ruling in the course of his or her job. It’s deliberately inaccurate, though, because the use implies that the judge has done something improper and outside the bounds of his job. It’s only being applied to gay marriage rulings, though; the “Citizens United” ruling was as revolutionary as any of the gay marriage rulings (though in a different realm), but rarely is that referred to a “judicial activism.”

* “political or other goals.” Impartiality is one of the most important aspects of our court system. Calling these rulings “activism” carries with it the connotation of political action, which erodes our faith in their impartiality. Again, note that this label is only applied to certain rulings with which these people disagree. They often don’t examine the actual legal reasonings leading to the ruling. All they know is that they don’t agree with it, so they do whatever they can to make it seem less legitimate.

* The word “activist” also leads us to images of violent protestors, people who are willing to break the law for what they believe in. Again, this association is meant to belittle the judges, to imply that they’re putting their cause ahead of their job.

So do me a favor. When you talk about gay marriage rulings, don’t call it “judicial activism,” even if you’re for it. Call it “social progress.” Those words are accurate and meaningful.

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