Chapter 3 – “Result-oriented” judging as a species of “judicial activism.”

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Kmiec’s survey begins in January 1947, the date his research pinpoints as the first recorded use of the term “judicial activism.” It came in a Fortune magazine article profiling the Supreme Court Justices. The author was Arthur Schlesinger, Jr.—a historian, not a lawyer. Kmiec at 1445‐50.

Schlesinger divided the Court into three distinct groups. Justices Black, Douglas, Murphy, and Rutledge were identified as the “Judicial Activists.” This wing of the Court was”concerned with the employment of judicial power for their own conception of the public good.” Kmiec at 1447.

Justices Frankfurter, Jackson and Burton were the “Champions of Self Restraint.” They were more concerned “with expanding the range of allowable judgment for the legislatures, even if it means upholding conclusions they privately condemn.” Kmiec at 1446. In the middle were Chief Justice Vinson and Justice Reed. Id.

After describing the different factions on the Court—but without defining “judicial activism” with any great precision—Schlesinger sided with the Frankfurter‐Jackson wing. Id. at 1449‐50.Kmiec then surveyed 58 years of commentary and judicial decisions that used the term “judicial activist” or its cognates. He found that in its early years of usage the term
“sometimes had a positive connotation, much more akin to ‘civil rights activist’ than ‘judge
misusing authority.’” Id. at 1451.

By the mid‐1950s, however, “the term had taken on agenerally negative connotation, even if its specific meaning was hard to pin down.” Id. Since then, “judicial activism” has become a commonplace[20] with “a number of disparate,
even contradictory” meanings. Id. at 1443.

Kmiec has identified five core meanings for”judicial activism” as that term is applied to judicial conduct at the appellate level:
1. Invalidation of the arguably constitutional actions of other branches (Id. at 1463‐66).
2. Failure to adhere to precedent (Id. at 1466‐71).
3. Judicial “legislation” (Id. at 1471‐73.)
4. Departures from accepted interpretive methodology (Id. at 1473‐75).
5. Result‐oriented judging (Id. at 1475‐76).

According to Kmiec, judicial conduct that fits within core meanings nos. 1 through 4 has a fair share of defenders.[21] He found no one, however, willing to defend result‐oriented judging. See 92 Cal. L. Rev. at 1475‐76.


Chapter 2 – Result-Oriented Judging: A Process- Oriented Definition

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B. The element of scienter that distinguishes a result-oriented
decision from the other four species of judicial activism.

Kmiec argues (at 1475-76) that result-oriented judging is a “species of judicial activism [that] differs in kind from the previous four because it has a scienter element.” He defines a result-oriented decision as one where “(a) the judge has an ulterior motive for making the ruling; and (b) the decision departs from some ‘baseline’ of correctness.” Id. at 1476 (emphasis added). He notes, however, “[t[here is rarely smoking gun evidence of an ulterior motive.” Id. at 1476.

To say that a result-oriented judge acts with scienter is a dry way of declaring that the judge has deceived[22] the intended audience—the judge has deliberately withheld information from the opinion that, if it were included, would “invite[e] strong condemnation” of the opinion by members of the bar, the bench, and the academy. The Federal Courts: Challenge and Reform, supra note 4, at 311.

Kmiec’s definition of “result-oriented judging” is based on the definition of “judicial activism” offered by Judge Diamuid O’Scannlain of the Ninth Circuit:

Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete definition. For instance, a critical consideration is the state of mind of the allegedly activist judge. Judicial activism means not the mere failure to defer to political branches or to vindicate norms of predictability and uniformity; it means only the failure to do so in order to advance another, unofficial objective.
On Judicial Activism, Open Spaces Quarterly, vol. 4, No. 1[23] (emphasis added).

O’Scannlain’s reference to a result-oriented decision’s “unofficial objective” echoes Posner’s definition of a result-oriented decision as one that omits to declare on the record the true grounds on which it rests. The Federal Courts: Challenge and Reform 311-12.

/s/ John P. Messina