The Myth of the Activist Judge and the Strict Constructionist

Pretty much every time a major court makes a controversial ruling, whatever segment of the population that doesn't like the outcome of the ruling inevitably decries it as the result of "activist" judges. The activist judge is, generally, then contrasted with something like the "strict constructionist" judge that, in their opinion, interprets the law more strictly and doesn't read their own opinions into it. As epxected, the old hue and cry went up again over yesterday's ruling on same-sex marriage by the California State Supreme Court.

The "activist judge" label is supposed to imply that a judge has injected their personal opinions of the matter into the debate and made their decision based on personal opinions rather than on rigorous legal interpretations; in truth, though, I can't remember the last time I heard a legitimate criticism of a judicial ruling based on the legal facts. Instead, what I often hear are slogans like "judges shouldn't rewrite the law," as if the judge's job was simply to sign off on whatever the legislature passed through, regardless of its constitutionality. In truth, the "activist" label is applied to any judge that ever overturns any law, making it a totally meaningless accusation. A judge's job is to interpret the law and decide how it applies or if it's constitutional; saying that judges should never overturn laws is tantamount to ripping up the constitution, since at that point it's basically useless. But as far as I can tell, that's exactly what people who complain about activist judges seem to want: a quiet judiciary that allows the legislature (or executive) to do as they please with no sort of checks on their power.

Similarly, the "strict constructionist" label is generally applied admiringly to judges that supposedly interpret laws "strictly." The problem is, it's impossible to define what that means. Certainly there are differences in how judges go about interpreting laws, and it's reasonable to prefer one type of interpretation over another, but what often seems to be attacked is the very act of interpretation itself. That, in turn, seems to stem from some misguided view that language carries its own inherent meaning that requires no further interpretation. The truth is that all communication requires interpretation on the part of the receiver, and that goes for reading legal documents as well as for normal conversations. A judge can't help but apply some sort of interpretation to the words in the legal text, so arguing against doing that is simply idiotic.