Is judicial activism a red herring?
Resuscitating minimalism’s popular influence
While remaining empty and objectionable political theater, the Sotomayor confirmation hearing’s focus on empathy has delayed the traditional discussion of “judicial activism.” Charges of activism have long been go-to talking points for Republicans. However, most commentary points to the fact that conservative-leaning judges are just as apt to strike down legislation. Further, the Ricci decision, Senate Republicans’ other cause du jour, is widely believed to have been decided by judge Sotomayor along minimalist lines. (Yglesias is to be credited for continuing to urge Republican senators to simply state “Judge Sotomayor made several decisions leading to results with which I disagree. I would prefer she make different decisions, so I am voting against her.”)
Judicial minimalism is indeed a well-established legal and philosophical tradition. However, given that it is most often supported at the highest levels of politics on the basis of outcomes rather than because of philosophical worldview, we must worry for the doctrine’s future.
Minimalism by itself is unlikely to garner much public attention if divorced from outcomes (especially conservative/Republican judicial outcomes). How, then, can proponents of judicial minimalism stay relevant? Perhaps one method would be to write popular-level op-eds discussing key decisions in this light — what precedents were upheld and which were disregarded or overturned. This could only be accomplished by those viewed to be in the middle of the political spectrum (think David Brooks, not Maureen Dowd). While this may never make minimalism a salient popular theme come election time, getting the chattering classes to discuss minimalism as a philosophy rather than as a political strategy may go a long way in resuscitating its image.
–John
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