Here's How Judicial Activism And Politicization Differ According To A Constitutional Law Professor

3 months ago

Constitutional Law Professor Kermit Roosevelt joins Forbes Senior Editor Maggie McGrath on "Forbes Newsroom" to discuss judicial activism and the differences between it and politicized courts.

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Transcript

00:00Now, I wanted to ask you, because you wrote a book whose title is, in part, The Myth of

00:05Judicial Activism.

00:07So we've talked about the politicization of the court and the way the general public is,

00:13you know, it's not as popular among the general public because some of these decisions are

00:17so out of step with general polling.

00:19So why is judicial activism a myth, and is that different than the politicization of

00:25the court?

00:27Well, those are great and complicated questions.

00:32So my argument in the book was that lots of constitutional questions don't have clear

00:38answers.

00:40And what happens when the court confronts a question like that is it often has to decide

00:46whether it's fair or reasonable to treat people in a certain way, or whether a right is sufficiently

00:51important to be protected by the Constitution.

00:55And it's not just writing on a blank slate when it addresses that question.

01:01Because Congress and the president, if you're talking about a federal law, have expressed

01:04their view.

01:05Or a state legislature, if you're talking about a state law, the state legislature and

01:08the state governor have expressed their view, right?

01:11They pass a law and they're like, we think it's fair to treat women this way, or we think

01:15it's appropriate to treat gay people this way.

01:17And then the Supreme Court is going to decide ultimately sort of whether or not it agrees

01:25with that decision.

01:27But primarily, I think, how much weight it's going to give the views of these other government

01:33actors, whether it's going to defer to them or not.

01:37And if you go through the very complicated doctrine and the tests that the Supreme Court

01:41uses, a lot of it boils down to this question, do we defer?

01:45Do we trust the judgment of the people whose actions we're reviewing, or do we not?

01:51And so the thesis of my book was, you can ask whether the court has a good reason to

01:57trust the people, to defer to them, or not.

02:00And if there's a good explanation for why it's either said, you know, we trust you,

02:06we're going to let you do what you want as long as it's not totally crazy, or when they've

02:10said we don't trust you, we're very suspicious of what you're doing in this area, if there's

02:14a good reason for that, it's not activism.

02:17If there isn't a good reason, then maybe you could call that activism.

02:22And sort of the point of the book was that a lot of the decisions people criticize as

02:26activists, like Brown v. Board of Education was one, Obergefell was one, Roe, of course,

02:31was one, a lot of those decisions, you can actually tell a pretty good story about why

02:35it doesn't make sense to leave that up to the political process.

02:40Whereas with a lot of the more recent Supreme Court decisions, I don't think that's true.

02:45So I don't think you can tell a very good story as to why judges shouldn't defer to

02:49experts about, you know, what level of particulates is safe.

02:54That's an area where deference is appropriate.

02:57And when judges are like, we're going to make that decision ourselves, that's activism.

03:02That's a very good explanation.

03:04And it does, I see how it's different than the partisan politicization arguments, but

03:10they are different things.

03:12But when you talk about experts, you could argue that the Supreme Court might need to

03:15listen to doctors a little bit more than they've been listening to doctors.

03:20You could.

03:21And you know, that was actually a big part of the initial Roe opinion.

03:24It was not so much grounded in a woman's right to choose as it was in deference to medical

03:27expertise, right?

03:29That's Harry Blackmun's version.

03:31And a quality-based argument came along later.

Here's How Judicial Activism And Politicization Differ According To A Constitutional Law Professor

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