Frankness About Activist Judges
Professor Geoffrey Stone calls for frankness in discussing what judges in our country do. Focusing on federal constitutional law, he explains that the notion of judges as “umpires,” calling balls and strikes, is usually disingenuous.
Much federal constitutional text is not self-defining so engaging with those parts must be “active.” Political operators are responsible for misleading a public discourse suggesting the deceptive notion that “liberal” judges are “activists” who “make up the law” while “conservative” judges simply “apply the law.”
This canard is not limited to federal constitutional law and is revealed clearly in a prominent recent opinion written by conservative Judge Frank Easterbrook. Easterbrook faced a 40-year old statute setting a “fiduciary” standard to certain fee arrangements of mutual fund advisers.
Disregarding the statute’s plain text and meaning, and decades of uniform judicial interpretation, Easterbrook went out of his way to declare that, in his judgment, that statute is bad policy. In a start of judicial activism, he made up a new definition of the word fiduciary, to mean making disclosure and “playing no tricks,” however outrageous the fees may be.
The Supreme Court unanimously vacated that opinion as erroneous, reminding the federal judge that he is not in the legislative branch and has no vote on the wisdom of federal statutes. His job is to apply the law as written, not make it up as he believes it should be.
When a federal statute’s language is that clear, judges don’t even need to be umpires to apply it, and there is not even much need for active engagement with the text. Yet Easterbrook showed the fiercest sort of judicial activism, elevating his own ideology over the plain statutory text. Every educated 10th grader in the country would recognize that as a violation of basic constitutional design. That is neither conservative nor liberal, but hyper-activist.