Lectures

Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

IJA Brennan Lecture

Brennan Lecture

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the “complicated interdependent decisions” faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge’s decision whether—and, if so, how—to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence.

Brennan Lecture