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Why Judicial `Activism' Explains Little

Kermit Roosevelt is a professor at the University of Pennsylvania Law School and author of "The Myth of Judicial Activism."

'Empathy, the Oxford English Dictionary tells us, is "the power of projecting one's personality into (and so fully comprehending) the object of contemplation." Recently, in response to President Obama's announcement that it was a quality he would seek in Supreme Court nominees, Orrin Hatch and Karl Rove have offered a different definition. Empathy, they say, is a "code word" for liberal judicial activism.

That definition might be useful to the debate over judicial qualifications if activism were itself a helpful concept. But it is not.

Activism, in political rhetoric, means deciding cases based on a judge's policy preferences rather than the law. That is certainly a bad thing, but it is almost never possible to say with confidence that the Supreme Court has engaged in it. The constitutional provisions that generate controversial cases tend to indicate that some value is important-equality, for instance, or free speech-but they do not mark the outer boundaries of the concept or tell the Court how to apply it in particular circumstances. "The law" does not provide a clear answer in these hard cases, and since it doesn't, one cannot say that judges have rejected law in favor of policy.

So how does the Court decide a hard constitutional case? The most basic choice it has to make is how assertive it will be with respect to the other branches of government. Will it defer to their judgment? Or will it press its own vision of equality or free speech against the contrary view of Congress or a state?

Liberal and conservative judges tend to show different patterns of assertiveness and deference. Explaining his vote against the nomination of John Roberts, then-Senator Obama noted that Roberts "has far more often used his formidable skills on behalf of the strong in opposition to the weak." If there is a theme emerging from the decisions of the Roberts Court, it is precisely that. The Roberts Court tends to be assertive in defending the interests of the powerful. It intervened in the name of equality when whites were inconvenienced by an attempt to maintain an integrated school system. It protected the speech of corporations hoping to influence elections, but not that of a public school student and a government employee facing discipline for their words.

Liberal judges, by contrast, tend to assert their authority on behalf of the politically weak. With respect to free speech, the Court's liberals voted in favor of the suspended student and the fired employee and against the corporations. On equality, they would have left the integration plan up to the political process. Liberal interventions in the name of equality tend to come on behalf of minorities.

What explains the difference between the liberals and conservatives? The dichotomy between law and policy is no help here. Neither is the idea of activism, or facile analogies about judges being umpires rather than players. But empathy, as Obama described it, actually does a pretty good job.

Empathy, he said, is the quality of "understanding and identifying with people's hopes and struggles." A judge with this quality will be more ready to believe that the political process fails to protect the rights of the weak and the unpopular. She will be more sensitive to the plight of the outsider and more willing to see fundamental similarities between people, rather than believe that others are irreconcilably different. (That is the central issue in the current struggle over gay rights, as it was in the civil rights movement of the last century.) She will be less willing to suppose that the unfortunate necessarily deserve their fate.

A judge who held these views (I do not mean to suggest that Sotomayor does or does not) would tend to assert judicial power on behalf of political outsiders rather than corporate interests or majority groups. She would believe that the political process could generally be trusted to safeguard the rights of the powerful, but she would be more suspicious of political outcomes that disfavored the weak. As far as current political alignments go, she would be liberal. She would not, however, be activist in any useful sense of the word. And her critics would not be neutral defenders of the Constitution but rather purveyors of a particular, conservative, ideology.

That ideological stance is what talk of activism seeks to camouflage. No one thinks that judges should decide cases based on policy rather than law, and if a nominee is truly an activist, all responsible people should oppose her. But the choice is not between activists and umpires; it is between different ideological approaches to judging. What all responsible people should oppose is the misleading word "activism." We cannot have a meaningful discussion about the courts or the Constitution in those terms.

It is to Obama's credit that when he was a senator opposing a nominee, he did not resort to vapid slogans. He admitted that in some cases, law alone would not provide answers. And he said forthrightly that he feared in such cases Roberts would side with the strong, as indeed he has. The conservative critics of empathy are entitled to their views, but they must likewise make their case on the merits. And they should be prepared to hear in response that on ideological issues, elections have consequences.

By Kermit Roosevelt
Special to CBSNews.com