March 15, 2005

What Scalia Might Have Meant

by PG

Linking a Washington Post profile of Justice Scalia*, IrishLaw says, "I must note that he chastises conservatives on use of the phrase 'judicial activism': it's 'overused.' As for yesterday, I guess I'm guilty :) But I don't think I do it all the time! And besides, 'overused' doesn't mean it's not true :)."

"Overused" might mean that a word is used so often as to lose its meaning, or perhaps that it doesn't have enough significant meaning to begin with. After all, what does "judicial activism" mean? In its broadest sense, it could mean any time the judiciary exercises power to quash the legislature and executive, so Scalia's votes with the majority in Dale v. BSA (squelching New Jersey's anti-discrimination law's application to organizations claiming a First Amendment right to exclude homosexuals) or Solid Waste Agency v. Army Corps of Engineers (denying an arm of the executive jurisdiction over bodies of water insufficiently involved in interstate commerce) -- just to take the two cases I studied in undergrad con law -- were forms of judicial activism.

Of course, fans of Scalia's jurisprudence could argue that "judicial activism" is any departure from the plain meaning of the Constitution, so that when Scalia overturns the Violence Against Women Act or Gun-Free School Zones Act, he is not being an activist, merely an adherent to a narrow definiton of interstate commerce. But then "judicial activist" just collapses into meaning "anyone who interprets the Constitution differently than I do."

* If the televised debate with Breyer really was a PR move, I wish it had been advertised with "Come see the softer side of Scalia."

March 15, 2005 02:34 AM | TrackBack

Let me see if I understand: the word "overused" is often overused. Sort of like "unbelievable" in sports? Is using the phrase "judical activism" occasionally somewhat like being "a little bit pregnant"? By the way, some of us have long been aware of the "softer side" of Justice Scalia and it has nothing to do with gentleness.

Posted by: Shag from Brookline at March 15, 2005 07:13 AM

"Judicial activism" has a straightforward meaning - it is failing to exercise sufficient judicial restraint, usurping power that properly lies with another branch of government, etc. The problem is not with the meaning of the terms, but that there is a substantive debate about where these lines ought to be drawn. We know what "sufficient restraint" or "usurping power" mean too, but debates about the role of the judiciary can't be solved by appealing to definitions. The problem is not that the words are meaningless, but that most of what passes for argument in the area amounts to little more than trading conclusions and yelling.

Posted by: DBS at March 15, 2005 10:11 PM
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