00:00Now, I wanted to ask you, because you wrote a book whose title is, in part, The Myth of
00:05Judicial Activism.
00:07So we've talked about the politicization of the court and the way the general public is,
00:13you know, it's not as popular among the general public because some of these decisions are
00:17so out of step with general polling.
00:19So why is judicial activism a myth, and is that different than the politicization of
00:25the court?
00:27Well, those are great and complicated questions.
00:32So my argument in the book was that lots of constitutional questions don't have clear
00:38answers.
00:40And what happens when the court confronts a question like that is it often has to decide
00:46whether it's fair or reasonable to treat people in a certain way, or whether a right is sufficiently
00:51important to be protected by the Constitution.
00:55And it's not just writing on a blank slate when it addresses that question.
01:01Because Congress and the president, if you're talking about a federal law, have expressed
01:04their view.
01:05Or a state legislature, if you're talking about a state law, the state legislature and
01:08the state governor have expressed their view, right?
01:11They pass a law and they're like, we think it's fair to treat women this way, or we think
01:15it's appropriate to treat gay people this way.
01:17And then the Supreme Court is going to decide ultimately sort of whether or not it agrees
01:25with that decision.
01:27But primarily, I think, how much weight it's going to give the views of these other government
01:33actors, whether it's going to defer to them or not.
01:37And if you go through the very complicated doctrine and the tests that the Supreme Court
01:41uses, a lot of it boils down to this question, do we defer?
01:45Do we trust the judgment of the people whose actions we're reviewing, or do we not?
01:51And so the thesis of my book was, you can ask whether the court has a good reason to
01:57trust the people, to defer to them, or not.
02:00And if there's a good explanation for why it's either said, you know, we trust you,
02:06we're going to let you do what you want as long as it's not totally crazy, or when they've
02:10said we don't trust you, we're very suspicious of what you're doing in this area, if there's
02:14a good reason for that, it's not activism.
02:17If there isn't a good reason, then maybe you could call that activism.
02:22And sort of the point of the book was that a lot of the decisions people criticize as
02:26activists, like Brown v. Board of Education was one, Obergefell was one, Roe, of course,
02:31was one, a lot of those decisions, you can actually tell a pretty good story about why
02:35it doesn't make sense to leave that up to the political process.
02:40Whereas with a lot of the more recent Supreme Court decisions, I don't think that's true.
02:45So I don't think you can tell a very good story as to why judges shouldn't defer to
02:49experts about, you know, what level of particulates is safe.
02:54That's an area where deference is appropriate.
02:57And when judges are like, we're going to make that decision ourselves, that's activism.
03:02That's a very good explanation.
03:04And it does, I see how it's different than the partisan politicization arguments, but
03:10they are different things.
03:12But when you talk about experts, you could argue that the Supreme Court might need to
03:15listen to doctors a little bit more than they've been listening to doctors.
03:20You could.
03:21And you know, that was actually a big part of the initial Roe opinion.
03:24It was not so much grounded in a woman's right to choose as it was in deference to medical
03:27expertise, right?
03:29That's Harry Blackmun's version.
03:31And a quality-based argument came along later.
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