Professor Robert Lipkin addressed members of the faculty and staff on the subject of judicial activism on Monday February 11th. The engaging talk sparked a number of questions from the audience that lead to interesting debates.
The talk opened with an examination of the two major kinds of judicial activism, interpretive activism and institutional activism. Interpretive activism would include; infidelity to relevant texts, history, or already in place structures, failure to defer to previous precedent, or a maximalist interpretation in which the court broadens the scope of the question with personal or political theories rather than maintaining a narrow focus. Institutional activism on the other hand focuses on the activism that can arise out of the decisions of state legislatures, Congress, and other such institutions. Both interpretive activism and institutional activism can lead to the partisan activism that leads to judicial decisions being made along political lines.
According to Professor Lipkin, “The worst entities to decide essentially contested issues are the court. The only people who can solve it are the people themselves, or their elected representatives.” The professor’s strong position prompted a number of questions an counterpoints, including Professor Patrick Kelly’s contention that Professor Lipkin was putting “ a lot of faith in Congress. My concern about all of this is that Congress is not a particularly democratic institution.” While Professor Lipkin noted that he did not in fact have great confidence in Congress, he did assert that because individual members of Congress have to answer to the people who elected them, they make a better check than Supreme Court justices who do not have to answer to anyone. Other topics debated included normal adjudication and revolutionary adjudication as well what constitutes activism.
Visit Professor Lipkin’s blog, Essentially Contested America, to read about his thoughts on a variety of cultural, political, and legal issues