Comments on: “Ask the Author”: Cass Sunstein & Tom Miles, Part I http://www.scotusblog.com/wp/ask-the-author-cass-sunstein-tom-miles-part-i/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Bryan Hart http://www.scotusblog.com/wp/ask-the-author-cass-sunstein-tom-miles-part-i/comment-page-1/#comment-13635 Bryan Hart Wed, 12 Dec 2007 23:38:59 +0000 http://www.scotusblog.com/wp/uncategorized/ask-the-author-cass-sunstein-tom-miles-part-i/#comment-13635 The terms "judicial activism" and "judicial restraint" seem to have shifted from being political buzzwords of the right--such as "pro-abortion--to being contested concepts--such as "freedom," which some would define as purely negative freedom but others as including basic necessities. The shift was caused by liberal criticism of conservative justices as being too activist. Contested concepts are generally agreed to be positive, but debate occurs over the boundaries of the concept. Miles and Sunstein's definition shifts the terms even further--from being contested political concepts to stripped-down, neutral concepts. The words have simply their denotation and little connotation. This development is positive because it removes the assumption that all restraint is good and all activism is bad. Since agencies will make at least some mistakes, their definition implies that the optimum level of activism is greater than zero; thus, not all instances of activism are bad. (The article only draws inferences from relative rates of upholding decisions, not absolute.) The debate over judicial behavior would benefit from realizing that judges sometimes have to make tough calls, and determining whether those calls are correct requires something other than labeling them "activist" or "restrained," regardless of which side of the political aisle does the labeling. The terms “judicial activism” and “judicial restraint” seem to have shifted from being political buzzwords of the right–such as “pro-abortion–to being contested concepts–such as “freedom,” which some would define as purely negative freedom but others as including basic necessities. The shift was caused by liberal criticism of conservative justices as being too activist. Contested concepts are generally agreed to be positive, but debate occurs over the boundaries of the concept.

Miles and Sunstein’s definition shifts the terms even further–from being contested political concepts to stripped-down, neutral concepts. The words have simply their denotation and little connotation. This development is positive because it removes the assumption that all restraint is good and all activism is bad. Since agencies will make at least some mistakes, their definition implies that the optimum level of activism is greater than zero; thus, not all instances of activism are bad. (The article only draws inferences from relative rates of upholding decisions, not absolute.)

The debate over judicial behavior would benefit from realizing that judges sometimes have to make tough calls, and determining whether those calls are correct requires something other than labeling them “activist” or “restrained,” regardless of which side of the political aisle does the labeling.

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