“Judicial activism” is a notoriously malleable phrase. Back in 2011, longtime New York Times legal correspondent Linda Greenhouse wrote that for more than 60 years “it’s been clear . . . that the definition lay in the eyes of the beholder – nearly always a disgruntled beholder, since people rarely describe as ‘activist’ a judicial outcome with which they are satisfied. Judicial activism is a protean concept that changes with the times.”
No such note of skepticism sounds in her latest offering, which straightforwardly condemns Justices Samuel Alito and Neil Gorsuch for engaging in judicial activism. She doesn’t actually supply a definition herself, instead repeating the assertion three times (four counting the headline). Their offense consists of wanting to reverse a 1977 Supreme Court precedent that narrowly interpreted the religious accommodations that employers have to extend under the Civil Rights Act of 1964. She closes her column with what is, I suppose, meant as the coup de grâce:
Has Congress never considered repudiating the court’s de minimis interpretation of “undue hardship”? Actually, it has: Bills to do just that were introduced in 1994, 1996, 1997, 1999, 2002, 2005, 2007 and 2010. They failed to pass. So now Justice Alito and his one or two allies want to do Congress’s work for it. Someday, maybe soon, when the right case arrives, he may find the additional allies he needs.
That’s what judicial activism looks like.
Remarkably, Greenhouse does not mention that the Supreme Court, less than a year ago, decided a big case involving the interpretation of the very same statute. In that case, the question was whether the statute’s prohibition of discrimination on the basis of sex includes a prohibition on discrimination on the basis of sexual orientation or transgender status. It had never previously been held to include such a prohibition.
Has Congress ever considered changing the law to prohibit such discrimination? Actually, yes it had. Bills of this nature were introduced in 1974, 1975, and every Congress from 1994 to today, with one exception. They failed to pass. Six Supreme Court justices — led by Gorsuch, one of the same justices Greenhouse condemns today — decided to do Congress’s work for it.
Naturally, she urged the Supreme Court to take that step and applauded when it did and said zilch about the failure of the bills in Congress in either column. Somehow the phrase “judicial activism” also didn’t come up either time.