Arizona Supreme Court Justice Clint Bolick Discusses Judicial Activism

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Arizona Supreme Court Justice Clint Bolick gave a lecture arguing in favor of increased judicial activism in the United States as a guest of the Miami Law's student organization, the Federalist Society.

Arizona Supreme Court Justice Clint Bolick

“As a practical matter, principled judicial activism is essential to preserve individual rights and to hold the government to its boundaries of power,” Bolick said. “What I love most about it is that it vindicates the rule of law and the protection of individual rights - it protects David against Goliath.”

Justice Bolick praised Alexander Hamilton’s explanation of the intended role of the judiciary as outlined in Article 78 of The Federalist Papers. “That’s my view of the proper role of the courts. And that is to be extremely aggressive in safeguarding the rights of individuals and the limits on the powers of the other branches of government while at the same time never exercising executive or legislative powers,” he said. “That would lead to tyranny in Hamilton’s view.”

According to Justice Bolick, the legislative and executive branches have in fact undergone enormous growth over the last half-century, which represents a dangerous expansion of power. He cited the statistic that the U.S. Code, the compilation of all federal laws, grew by just 11,000 pages over 169 years from its inception in 1789; it grew by more than four times that amount in only 42 years after 1958.

“The growth of legislation in this country is head-spinning,” he said. He argued that this expansion is at least partially attributable to the fact that legislators have become less concerned over the constitutionality of potential statutes over time.

“What guides my philosophy in terms of what laws should be struck down and what laws should be upheld is really decided by the text of the constitution; I consider myself a textualist,” Bolick said. “I view the constitution as a contract - the most organic and important contract that exists in the world.”  

In Bolick’s 2007 book, David’s Hammer: The Case for an Activist Judiciary, he presents the argument that only a vigorous judiciary can enforce the limits on executive and legislative action and protect constitutional rights. The ebook version is available for free on the Cato Institute website.

Speaking on behalf of the Federalist Society, President Stephen Smith praised Bolick’s lecture.

“We are very pleased with how well the event went,” he said. “We hope that those who attended left with new thoughts on judicial activism.”

Prior to becoming an Associate Justice of the Arizona Supreme Court, Bolick was the Vice President of Litigation at the Goldwater Institute, a conservative and libertarian public policy think tank. In 1991 Bolick co-founded the Institute for Justice, a non-profit libertarian public interest law firm, where he served as VP and director of litigation. Bolick is a 2006 Bradley Prize recipient and was named one of the three lawyers of the year in 2003 by American Lawyer Magazine. In 2009, Legal Times named him in its list of the "90 greatest Washington lawyers of the past 30 years."  

Throughout his career, Bolick has sought to preserve individual rights through litigation. Recalling his first eminent domain case as a litigator for the Institute for Justice, he described a “voracious” casino owner which appealed to the municipal authority of Atlantic City to sanction the repurposing of land owned by a few resistant homeowners and small businesses into a parking lot. Bolick and his team successfully defended their client, Vera Coking.

“It actually worked out really well for everyone involved,” he said. “Mrs. Coking got to stay in the house that she had lived in for so many years, the developer ended up being elected President of the United States, and my colleagues and I can now say that we beat the President of the United States in a lawsuit.”

Justice Bolick concluded his lecture with some words for aspiring lawyers. “I want each and every one of you to know you will have tremendous power when you are finally admitted to the practice of law and I really hope that, whether it’s just as a pro-bono lawyer or even testifying before committees or whatever, that you will put it to good use to advance the rule of law and fight for the underdog.”