Justice Thomas: Judicial Activism Has No Meaning

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Supreme Court Associate Justice Clarence Thomas was in Florida Friday delivering a series of speeches and appearances to the faithful—literally. One of six Catholics on the court, his remarks at Ave Maria University, the Ave Maria School of Law, and to Catholic business leaders earned him rave reviews from some in the local media.

The Ave Herald (Ave Maria, Florida) reported:

"... Nonetheless," he said, "I get called an activist because I believe we should follow the constitution, not the stuff we made up about it." He urged the students to respect the courts, even if they disagree with their decisions. "You want to be constructive," he said. "You can feel strongly without acting emotionally and being bitter and angry." Common themes in both appearances were the importance of faith and being guided by wanting to "just do the right thing. I tell my law clerks every year," Justice Thomas said, "that pragmatism is not a principle. It's giving yourself the excuse to go along to get along."

And the Naples Daily News (Florida) offered this:

He fielded a question about the prevalence of judicial activism: 'I think it's so interesting, because the people who have gone beyond the traditional way of reading the Constitution were really activists. ... I'm an activist to them because I say we should follow the Constitution and not the things you've made up about it. So, I really don't know what that means —it's lost its meaning if I an (sic) an 'activist.'

Now, I have long argued that the phrase "judicial activism" means so many different things to so many different people that it really means nothing at all. But it's fascinating to me to see that the avatar of perceived judicial activism on the part of the court's conservatives—remember I said perceived—would frame the issue that way. For once, Justice Thomas is right. Judicial activist means nothing. How about we coin a new phrase and see if it sticks: How about "judicial partisan"?

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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