Craig Green, Associate Professor of Law at Temple University’s Beasley School of Law, spoke to faculty members on the Harrisburg campus about his historical analysis of judicial activism on Wednesday, November 12th.
Opening with the origins of the term judicial activism, Professor Green noted that the term came from Arthur M. Schlesinger Jr.’s 1947 Fortune magazine article, "The Supreme Court: 1947". “Judicial activism is best reconceived as meaning a departure from accepted notions of judicial role,” suggested Professor Green, adding, “Most people feel like judicial activism is a meaningless term; it’s a useless term, a politically corrupted term, it’s the type of term that educated people should not use. My suggestion is in response to that point; it has been around for sixty years. It hasn’t died yet. It has political power, and it is not helpful, I suggest, to ignore a category of discourse about judges just because they are using the wrong word.”
Continuing, Professor Green suggested that it would be more helpful to engage with people using the term judicial activism than to ignore them. He also shot down a second position on judicial activism that suggests judges are being activist whenever they strike down a statute. Moving on, he touched on the third philosophy of judicial activism, which he termed a ‘fixed-point’ approach to judicial role, using the metaphor of “judges in chains.” This included a look at originalist philosophies, which he likened to extending the chains all the way back to the writing of the Constitution in 1787.
At the conclusion of his talk, Professor Green took questions and suggestions from the faculty members in attendance. Issues raised by the faculty members included the problem that originalist interpretations exclude women and minorities. Professor John Capowski
suggested that judicial activism has become largely a political term used to criticize those judges who hold different opinions, and that therefore it has lost some meaning. Professor Green responded that other terms such as federalism have suffered the same fate in terms of multiple meanings, and yet that term is still used as well, adding that “It’s not coincidence that judicial activism has succeeded as a term.”
Professor Wesley Oliver
asked whether or not Professor Green considered activism necessarily bad by his definition. “I can’t recommend that judges be activist. I think the way that I’ve constructed it – unlike the folks who think it’s overruling or something like this – all else equal, I have to recommend that judges not be activist,” answered Professor Green.
A graduate of Wake Forest University, Professor Green received his J.D. from Yale Law School. A former clerk for Judge Pollak of the Eastern District of Pennsylvania and Judge Garland of the D.C. Circuit, he served as a Bristow Fellow in the Solicitor General’s Office and as a trial attorney for the Department of Justice’s Civil Appellate Staff. Professor Green teaches in the areas of federal courts, administrative law, and constitutional law, and his research focuses on the role of federal courts in overseeing the executive branch.