Strengthening Constitutional Self-Government

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Defining Judicial Activism Down

As pundits debate the merits of Obama's Supreme Court nominee Elena Kagan, discussion of "judicial activism" takes center stage.  But the accusations of activism are not all being tossed in Kagan's direction.  What has typically been a nomenclature used by conservatives is now frequently being touted by the Left to attack the "conservative" justices on the Supreme Court.  These criticisms are based on all-too-common distortions of the term's meaning.  (I will leave it up to the reader to determine whether some distort it intentionally in order to mislead the American public, who overwhelmingly oppose judicial activism according to its actual definition...)

Among the erroneous definitions of activism is the idea that it occurs whenever the Court strikes down a law.  For example, MediaMatters attempts to debunk the "myth" that "liberal" judges engage in activism more than "conservative" judges by citing studies showing that conservative judges strike down legislation and regulation more than liberal judges do.  But do we really want judges to uphold all laws, even unconstitutional ones?  Would the Court be "activist" if it struck down a statute that, on its face, invidiously discriminated on the basis of race?

Of course not.  This facile view of activism is inconsistent with the appropriate understanding of the judicial review as eloquently expounded by Chief Justice Marshall in Marbury v. Madison: "If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."  Courts have a duty to strike down laws that violate the Constitution because the Constitution is supreme.

Judicial activism, rightly understood, occurs when judges make decisions not based on what the Constitution requires, but on their own personal or policy predilections.  Contrary to what MediaMatters and many others think, activism does not refer to judges being active in striking down legislation, but being activist in advancing their own policy agenda through judicial decision-making.

Similarly, when we praise judicial restraint, we do not mean judicial passivism---or, reluctance to overturn a law regardless of whether it violates the Constitution.  We simply mean restraint from allowing one's own personal preferences to guide his judgment in the case. 

Indeed, justices who are truly committed to "judicial restraint" must often cast votes that diverge from their own policy preferences.  Take, for example, Justice Potter Stewart's vote in Griswold v. Connecticut, the case in which the Court declared that the "penumbras" formed by "emanations" of certain guarantees in the Bill of Rights grant a right to the use of contraceptives in marriage.  In his dissent, Justice Stewart explained that he thought the Connecticut law banning contraceptives was "uncommonly silly," and that he opposed it on practical, philosophical, and policy levels.  Nonetheless, he would not vote to overturn it because it did not violate the Constitution. 

All judges, including the next Supreme Court justice, should follow the wise example of Justice Stewart in Griswold, who showed great restraint in concluding: "We are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."

Categories > Courts

Discussions - 9 Comments

As in, for example, the Citizen's United case?

Kagan argued for government control of free speech when the case was re-argued in Sept. 09 and did not back down from the government's prior position that the FEC could ban books if they were published by a corporation (like a publishing company?) and seemed to advocate a candidate.

If you go to the oral arguments in pdf and track him, Justice Alito was all over this issue. I would give you the links, but if I do I think my comment will not be posted. The arguments are on the Supreme Court website and make surprisingly good reading.

Perhaps the easiest way to put it is to equate activist jurisprudence with living constitution jurisprudence. The idea that the meaning of the constitution evoloves over time, an idea foreign to the constitutionalism of the founders (ie: an idea foreign to the law as passed) is an excuse for judges to rewrite the constitution to suit their own preferences.

I'm more with Richard on this unfortunate nomenclature, which displays legal conservatism's tendency to throw away trump cards--the nature of justice and the rule of law. Justices should be active in the defense of the Constitution, properly understood. Deborah's argument tries to sneak justice and the rule of law into a vacant phrase. Conservatives can legitimately throw knock-out blows on this issue, but their rhetoric holds them back.

I'm reminded as well of Judge Bork's unfortunate phrase during his confirmation hearing: service on the Court would be "an intellectual feast." We need Kagan to say it would be "a political pig-out." But she is more deft than our guy. Had conservatives done their work properly we would have had Justice Bork and still have Justice Ken Starr.

Ken, Richard: what are the political implications of the kind of sober "activism" you are recommending (i.e. one on behalf of the Declaration's meaning of justice and rule of law)? Does such activism leave citizens free to engage, through legislative activity and political debate, in the kind of activities which partake in a good human life? Or does this form of conservative "activism" foreclose this "higher" meaning of politics? I know this is not our most pressing problem today, but I do see this complaint lending inspiration to some of the more thoughtful (i.e. anti-libertarian) conservative calls for judicial restraint.

Brad, this active defense of constitutional government means healthy respect for majority rule. But majoritarianism is not the final definer of justice or constitutionality. Ultimately--see Madison, #51--the separation of powers is an expression of prudence; it is not a mechanical device.

Since the principle one is defending is inseparable from the right to self-government, then, obviously, the answer is yes.

For the self-sufficient philosopher that answer may be enough, Richard. But what about the rest of us? Maybe Ken's reminder about the separation of powers being an invention of prudence does more honor to politics. I mean insofar as the process of refining and enlarging the majority's view is not the exclusive job of the Court. A properly activist Court is there to prevent injustice and maybe by doing so can help facilitate greater (political) reflection on the human good -- which the limited purposes of liberal constitutionalism does not directly encourage.

There is more indirectness in the modern polity, but there was a great deal in Aristotle's just regimes, too. Examples such as Washington and Lincoln show the importance of prudence, as I'm sure you appreciate.

BTW, the captcha code words to post this entry are sadducee transplanting!

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