I find the term "judicial activism" to largely be meaningless. There is often no discernible line between "making law" and "applying the law." But I do think judges engage in judicial activism when they shed their robes on take on the role of advocates. It certainly happens that judges will give guidance or hints to advocates, especially pro se litigants, to help move cases along. But there is no reason for judges to raise issues that are not presented by the parties. The "party presentation" principle ensures that judges do not transgress this line.
Yet, judges seem to forget their role. The Fourth Circuit, in particular, has been summarily reversed twice in one term for violating the party presentation principle. In November, the Supreme Court SumRev'd the Fourth Circuit in Clark v. Sweeney You might think the judges in Richmond would take a hint, but no such luck. Yesterday, the Supreme Court summarily reversed the en banc Fourth Circuit in Margolin v. National Association of Immigration Judges. I wrote about this case back in December.
The Court explained that the party presentation principle prevents judges from becoming inquisitors:
Federal courts adhere to the principle of party presentation. See Clark v. Sweeney, 607 U. S. 7, 9–10 (2025) (per curiam). That principle—the "rule that points not argued will not be considered"—distinguishes our adversarial system of justice from an inquisitorial one. United States v. Burke, 504 U. S. 229, 246 (1992) (Scalia, J., concurring in judgment). Because courts are "essentially passive instruments of government," we rely on the parties to "frame the issues for decision" and decide "only the questions presented." United States v. Sineneng-Smith, 590 U. S. 371, 375–376 (2020) (internal quotation marks omitted).
The Court explained that it had to reverse the Fourth Circuit on this principle only a few months ago:
We recently reversed the Fourth Circuit for violating this party-presentation principle.
What happened here? The Fourth Circuit remanded the case on an issue that none of the parties had presented:
The Fourth Circuit violated the party-presentation principle when it decided "a case different from the one [respondent] advanced." 160 F. 4th, at 118 (Quattlebaum, J., dissenting from denial of rehearing en banc). As respondent conceded below, our precedent establishes that Congress, through the CSRA, intended to channel covered claims to the MSPB. ECF Doc. 72, pp. 8–9; ECF Doc. 11–1, p. 18. The parties thus confined their arguments to the narrow question whether respondent's claims were, in fact, covered. Unsatisfied with rejecting respondent's arguments on that question, however, the Fourth Circuit sua sponte addressed a much broader one and remanded for further proceedings on that question. The court transformed respondent's argument that the CSRA did not channel its claims into one that the CSRA might not—in light of current conditions—channel any claims. And the court did so without giving either side a chance to address its theory.See Clark, 607 U. S., at 9. That "'drasti[c]'" departure from the principle of party presentation "'constitute[d] an abuse of discretion.'" Id., at 10 (quoting Sineneng-Smith, 590 U. S., at 375).
The Court concluded:
The Court of Appeals lost sight of those principles here.
Why did the Fourth Circuit lose sight? Justice Thomas explains why in his concurrence, joined by Justice Barrett.
Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its "black robes to insulate[it] from taking notice of items in the public record." Id., at 313. Specifically, the Fourth Circuit worried that because "the President removed the Special Counsel" and "two members of the MSPB," there were now "serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended." Id., at 305. Congress designed theCSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that "the Government has questioned the constitutionality of the removal protections enshrined in the CSRA," it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress might not have intended for such claims to be channeled to the MSPB any longer.
Lower court judges consistently take judicial notice of what President Trump does, and uses those actions to change the meaning of the law. As Judge Wynn said in the travel ban case nearly a decade ago, "Do we just ignore reality and look at the legality?" Justice Thomas shoots down this amateur political analysis:
The Fourth Circuit's analysis bears little resemblance tolegal interpretation. Neither the President's view that he can remove federal executive officials, see Myers v. United States, 272 U. S. 52 (1926), nor his having done so, change the meaning of the statute or the binding nature of this Court's interpretation of it. "Conditions may have changed, but the statute has not." United States ex rel. Marcus v. Hess, 317 U. S. 537, 547 (1943). Courts may not "rewrite the statutory scheme in order to approximate what we think Congress might have wanted had it known that" the President or courts may conclude that its removal restrictions were "beyond its authority." Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 76 (1996). Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress's purposes. See U. S. Const., Art. I, §§1, 7. As Judge Quattlebaum wrote in dissent, the Fourth Circuit's decision below "undermines important principles of our system of justice," including that law remains law despite the "political controversies of the day." National Assn. of Immigration Judges v. Owen, 160 F. 4th 100, 118 (2025) (en banc).
Justice Barrett rarely joins these sorts of separate writings. She must have been especially troubled by what the en banc Fourth Circuit did here—with good reason.
The Fourth Circuit has a tradition, in which the judges come off the bench after arguments and shake hands with counsel. This tradition should not blur the distinction between those at the bar and those on the bench.
