Judge James Wynn Jr. critiques Supreme Court’s Rucho v. Common Cause ruling in Madison Lecture

What constitutes judicial activism? In delivering the James Madison Lecture on October 19 to an online audience, Judge James A. Wynn Jr., US Court of Appeals for the Fourth Circuit, offered his definition of judicial activism and why it applies to the US Supreme Court ruling in Rucho v. Common Cause. The June 2019 ruling determined that partisan gerrymandering claims were outside of the jurisdiction of federal courts.

Watch the full lecture on video:

Wynn, who authored the trial court opinion that was overturned by the US Supreme Court, evaluated different perspectives on judicial activism. According to one view, judicial activism can be identified through case outcomes, while another definition of judicial activism looks to the processes that judges follow in deciding cases, he said. 

Wynn found flaws in existing approaches, and offered his own process-based definition: “In deciding a case, a judge engages in judicial activism when the judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case.” Wynn asserted that Rucho v. Common Cause is an example of such activism because the Court “disregarded several well-established decisional tools that were materially relevant to the decision of the case.”

Selected remarks from the Madison Lecture:

James Wynn: “Transparency serves several purposes. It helps the public and other courts understand and critique a court’s decision not to treat the interpretive tool as decisive. It aids the political branches in understanding how courts will analyze the constitutionality or legality of their policy decisions. And it rebuts claims that the court is engaging in the sort of result-oriented decision making that is often reviewed as activist.” 

Wynn: “The Rucho Court fails to adhere to the well-established decisional tool that courts must fairly characterize parties’ arguments. Restricting courts to consider those arguments that are actually raised by the parties, ensures that the Court does not issue an advisory opinion or resolve questions or allowing arguments that are not developed. As Justice Kagan noted in her withering dissenting opinion, which was joined in by three other justices, the majority in Rucho failed to abide by this principle. To begin with, the majority mischaracterized the legal theory proposed by the plaintiffs, and that that was analyzed in the trial court opinion.” 

Wynn: “The Supreme Court still enjoys a pretty high level of confidence from the voters out there. But I do fear that…the connection of judges with the particular president that appointed them or the party that they have been associated with, will tell you the outcome in a case before you even know fully what the case is about. And that’s not a good thing. Ultimately, the judicial branch needs to maintain independence.”

Posted November 11, 2020