Judicial Philosophy and Constitutional Interpretation Notes: Activism, Restraint, and Constructionism

Terminology as Weapons: The speaker notes that terms like "judicial activism" and "judicial restraint" are often used as rhetorical weapons or slang (e.g., using "activist" as a synonym for liberal and "restraint" for conservative).
Divorce from Meaning: These terms are frequently used in ways completely divorced from their actual definitions, which the speaker identifies as a significant professional pet peeve.
The Danger of Manipulation: The speaker expresses deep frustration with people who use these terms as "code words" or with a "wink and a nod" to manipulate others who do not know the technical definitions.

Definition: Judicial activism occurs when judges shape judicial doctrine to conform with their personal views of the Constitution or social policy.
Core Mechanisms of activism:
- Judicial Review: This is the power of the court to determine the constitutionality of a law. Activism involve using judicial review over both national and state legislation.
- Overturning Precedent: Reversing past decisions is a definitive act of judicial activism.
Historical and Legal Examples:
- Roe v. Wade: The recent overturning of this decision is defined as an act of judicial activism.
- Plessy v. Ferguson: When the court overturned the precedent established in Plessy v. Ferguson via the decision in Brown v. Board of Education, that constituted judicial activism.
Philosophy of the Activist Judge:
- Frequency of Use: Activist judges tend to believe that the power to declare a law unconstitutional is enhanced if it is used frequently.
- Regular Tool of Government: Activism views the court's power not as a method of last resort, but as an acceptable and regular tool of government.
- Democratic Status: Under this view, the judiciary is not the "least democratic" branch; rather, all three branches (Executive, Legislative, and Judicial) are considered co-equal democratic entities.

Definition: Judicial restraint is the practice of deferring to the policies created by the elected branches of government (the Executive and the Legislative).
Deference to Elected Branches: A judge practicing restraint will let actions of the Presidency or Congress stand even if they personally dislike the policy (described by the speaker as an "Oof. Yuck." reaction).
Criteria for Intervention: A court practicing restraint will only intervene if the policy clearly violates one of two things:
1. The Constitution.
2. Established judicial doctrine.
Example regarding the Fourth Amendment:
- The Fourth Amendment provides protection against unreasonable search and seizure.
- If Congress passed a law stating the government could take away all personal property from every citizen, that would be a clear violation of the Fourth Amendment.
- In such a case, the court would strike it down; however, if a law does not clearly violate the Constitution or established doctrine, the court must leave it alone, regardless of their personal feelings toward it.

Definition: This philosophy dictates that the court should interpret the Constitution in a way that is consistent with the intent of the Framers rather than adapting it to contemporary conditions and needs.
The Originalist Perspective: Adherents (known as Originalists) argue for sticking to what the people who wrote the documents were thinking at the time of the drafting.
Critique of Originalism (The Speaker's View):
- The speaker notes that as a woman, being an originalist would be self-limiting because the original Framers did not intend for women to have a say in government.
- The Nineteenth Amendment: This amendment gave women the right to vote, but it was an addition (amendment) to the original document.
- Evolution of Language: The speaker argues that the way words and framing change over time is a natural and necessary progression for law.
- "Murder Mittens" Metaphor: The speaker admits to being skeptical when hearing someone claim to be an originalist, describing it as mentally pulling out "kitty cat claws" or loading up "murder mittens" to listen for flaws in the argument, though they remain open to hearing specific points.

Strict Constructionism: This requires a judge to stick extremely closely to the literal meaning of the Constitution when rendering a decision. The speaker uses synonyms like "tight," "close," and "severe" to describe this approach.
Textualism: The speaker identifies as a textualist, a subset of constructionism centered on the belief that "words matter."
- Presidential Context: The speaker observes that because Presidents can go anywhere and talk about anything, the specific words they use and the locations where they say them are significant.
The Practice of Textualism: Judges must not "wander too far off the ranch"; they must interpret only what is written.
Example regarding the Fourteenth Amendment:
- The Fourteenth Amendment guarantees "equal protection under the law."
- The text does not qualify this by saying it is only for men, only for women, or even for "space aliens."
- A strict constructionist reads the words "equal protection" as a broad mandate and refuses to read into the text what the Framers "really meant" or to add qualifications that are not present in the literal words.

Definition: A "test case" is a high-quality case filed specifically to observe how the courts are currently ruling on certain issues or ideas.
Purpose: Interest groups use test cases to see if the court is more or less favorable to an argument than they were previously (e.g., ten years ago).
Metaphor: The speaker likens this to "throwing spaghetti on a wall and seeing if it sticks."
Strategic Outcome: If the court shuts the case down, the group knows it is a bad time to push that agenda. If the court reacts with interest, it provides a "tone" that encourages further cases or litigation on that specific issue.

Correcting the Political Bias Myth: The speaker emphasizes that activism is not inherently liberal and restraint is not inherently conservative.
Historical Data on Striking Down Statutes: Statistically, some of the most conservative courts in U.S. history have been the most likely to strike down congressional statutes.
Case Study: Justice Thomas:
- The speaker cites Justice Thomas as an example of extremely conservative judicial philosophy.
- Historically, over the last $20$ to $30$ years, Justice Thomas has been very willing to strike down laws, making him, by definition, one of the most "activist" justices on the bench.
Conclusion: Activism is simply a tool and a term for a specific way of viewing the law, not a partisan label.