Can we say whether the Roberts Court exhibits "judicial activism"? Who cares. The term lacks coherence and ought to be scrapped, argues Jost on Justice. In certain cases of the current term, we have judicial restraint (District Attorney's Office v. Osborne), in others apparently activism (Herring v. United States, Gross v FBL Financial Services). Jost concludes:

Some critics might...accuse the Roberts Court of unacknowledged activism. The better view is to evaluate each ruling on its terms without resort to labels. Interestingly, that is the approach that Richard Epstein, a leading conservative law professor at the University of Chicago, urges in evaluating Judge Sotomayor’s rulings. The phrase judicial activism “tells you nothing,” Epstein remarked to the New York Times. “The term ought to be scrapped.”

That view seems persuasive, but does it also tempt us not to question the proper role of the judiciary? Whatever label you want to use, the judiciary best serves a free society when it checks the powers of the executive and legislative branches at the federal, state and local levels to their constitutional limits, while not overstepping its own constitutional authorities. Whether judges uphold this principle is partly a function of their incentive structure. Perhaps ironically, when judges have no incentive to rule one way or the other, their rulings are more likely to uphold (as they see it) the constitutional powers of the respective branches. "Because the outcome of a case decided by an independent judge does not affect his or her wealth or power, it costs judges no more to do what they think is right than to do what they know is wrong." (Cooter and Ulen Law & Economics, 4/e p.425)

Of course, judicial independence is itself a tricky issue (do we want a court that's free to indulge in ideological or fashionable views?) and different institutional arrangements achieve independence in different ways. To both simplify and further complicate, Andrew Hanssen (AER 2004) suggests that there is an optimal extent of independence (simple), which depends on how politically competitive the other branches are (complicated).

Similarly, in a free society there is an optimal extent of judicial activism, one that's very tricky to pin down. This trickiness probably explains why "judicial activism" is something of a bright line that divides political ideologies. Conservatives want courts to uphold laws that legislate morality; whereas libertarians are happy to see the courts uphold privacy and individual rights against factional mores. Liberals want activism for social justice; libertarians want the courts to protect economic rights. They're all arguing whether we're on the right side of the optimum, not too much unlike a Laffer curve in tax policy. This trickiness probably also explains the urge to drop the "judicial activism" label: let's move on already! Okay, let's. But while systematic patterns across a range of rulings may be elusive, it is still worthwhile to evaluate individual rulings vis-a-vis the proper role of the judiciary.

A few useful pointers I want to save:
- Clint Bolick presents a libertarian case for activism.
- Reason has a nice (IMO) essay by Damon W. Root connecting a principled activism with the benefits of a free society.
- Here is Richard Epstein on Justice Scalia's judicial activism
- Here is my former student Greg Rhemke on Scalia versus Epstein on judicial activism.
- Russ Sobel's and DOLer Josh Hall's new book, The Rule of Law (ch. 8), has a good discussion including the tidbit that Arthur Schlesinger coined "judicial activism" in the late 1940s. (While you're at it, check out my chapter 7 in that book, "The Law and Economics of Property and Contract".)