Kermit Roosevelt, David Berger Professor for the Administration of Justice at the University of Pennsylvania Carey Law School, recently spoke with Penn Today about judicial activism in a historical sense, and how justices today interpret the Constitution and federal and state policies.
From Penn Today:
Q: To start, how do you interpret the definition of judicial activism?
Judicial activism is generally an unhelpful term. Typically, it’s a rhetorically charged way of saying that you disagree with a decision or think a decision is wrong. What people usually mean by it is, ‘This decision is based on the judge’s policy preferences rather than the law.’ But I think the law/policy distinction is a lot harder to draw than most people realize because a lot of constitutional provisions are vague and value-laden, and the way that they get interpreted and applied are inevitably affected by the way people view the world. A lot of it looks like policy judgment, so if you disagree with it, people say they are following policy and not the law.
Q: When did the term originate?
You can find the same idea of judicial activism in Lincoln’s criticisms of Dred Scott — you could go back that far. You find it in the early 20th century in the progressive era, when the Supreme Court was invalidating progressive wage and hour legislation, and in the New Deal era as well, with Democrats in the 1930s — any time there’s conflict between the Supreme Court and other branches of government. It really came into currency in the Warren Court era, when conservatives were criticizing the Court. It depends on who is in control of the judiciary versus other branches of government.
Conservatives said it about [Justice Sonia] Sotomayor, and honestly that’s kind of racist. There’s this idea that the white male perspective is neutral, and any other perspective is bias, and that bias produces activism. Sotomayor said she would bring a wise Latina perspective, and people said that was a biased perspective… .
Roosevelt works in a diverse range of fields, focusing on constitutional law and conflict of laws. He has published scholarly books in both fields. His latest book, The Nation That Never Was: Reconstructing America’s Story (The University of Chicago Press, 2022), is a powerful and inspirational reinterpretation of our country’s history and fundamental values. Conflict of Laws (Foundation Press, 2010) offers an accessible analytical overview of conflicts. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (Yale, 2006) sets out standards by which citizens can determine whether the Supreme Court is abusing its authority to interpret the Constitution.