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Rosen’s “Restraint”
A term review.


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Jeffrey Rosen has registered some thoughts (registration required) on the recently concluded term of the Supreme Court that are occasionally interesting and informative. But in the course of an article partly based on an interview with Justice Stephen Breyer, Rosen reports that the justice “self-consciously embraced the mantle of restraint.” And Rosen actually buys it: “Judged by their willingness to defer to legislatures, liberals are now the party of judicial restraint. . . . [F]or now, the party of judicial restraint has a convincing spokesman in Justice Breyer.”

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Rosen indicates he is wedded to a “neutral meaning” of the expression “judicial restraint.” He never explains what he means by “neutral,” but it’s pretty clear that he means simply that whenever judges uphold the acts of legislatures, they are being restrained. By the same token, then, whenever they overturn such acts, they are being judicial activists. This approach would be consistent if we were to say that judges are activist whenever they find any violation of the Constitution has occurred, by whomever it was committed: Congress, a state legislature, the president, the military, a federal or state executive agency, a local governmental institution or official, judges and prosecutors in criminal cases, police officers — in short, anybody wielding public power.

The approach would be consistent, but it wouldn’t necessarily make much sense. For six decades the term “judicial activism” has almost invariably been a term of opprobrium, not merely of description (some bold souls have openly celebrated activism, but not many). And its opposite number, “judicial restraint,” has just as regularly been a term of praise. These phrases have been shorthand expressions for judging the judges, with judicial activism generally meaning the improper use of judicial power to strike down, as putatively unconstitutional, laws and other actions that are in fact constitutionally unobjectionable. After all, everyone but a very few cranks regards the federal judiciary as invested with some power to invalidate unconstitutional actions of other institutions, and we expect the power to be used on proper occasions. The ordinary user means, by “judicial activism,” the wrong or unjustified over-employment of such power. (There are some who claim that all wrong decisions — including those that decline to invalidate unconstitutional acts — are “activist.” I know that argument exists; I think it is mistaken and that such instances are sins of another kind altogether, if they are sins at all; but for present purposes I will say no more about this view.)

“Restraint,” then, is not the non-use of judicial power to rectify violations of the Constitution. (Neither does it, properly understood, concern the preservation of precedents — a factor sometimes used by liberal definition-changers whose purpose is to cast suspicion on reversals of liberal precedents.) It is the habit and practice of keeping judicial power within its proper bounds, upholding what is really constitutional and invalidating what is not, if the unconstitutional action can be brought properly within the reach of the judicial power. “Activism” and “restraint” are, in ordinary parlance, bound up with the arguments that the justices themselves make; with essential questions of jurisprudence; with debates over whether particular interpretations of the Constitution can be called “correct” and, if so, which ones can and cannot be. They are not simply matters of counting votes.

Rosen seems to be joining the ranks of those who want to empty these expressions of all “normative” content and render them “objective” and merely descriptive. Referring to a Kentucky law professor’s vote-counting study, the New York Times embraced this project last fall (see my criticism of it here). There is a sleight of hand going on in this project. Liberals observe that conservatives object to “judicial activism,” by which the latter mean unjustifiable invalidations of perfectly constitutional actions of governments and their agents. Chafing at their association with this condemned behavior and searching for a tu quoque, liberals change the definition of “activism” to mean “all decisions or votes for invalidation of government actions, regardless of reason.” Then observing that conservative justices of the Court sometimes vote for such invalidations, and that conservative commentators praise the jurists for these votes, the liberals claim to catch them out in a posture of supreme hypocrisy. “See, you right-wingers — and the judges you praise — embrace judicial activism as much as, perhaps more than, we liberals and our favorite judges.” But this is like catching someone having a small green salad for lunch, noting that he has in the past condemned gluttony, and saying that he is a hypocrite because he has been observed eating.

So the “neutral” definitions of restraint and activism are part and parcel of a disingenuous rhetorical gambit. But noting that for the record, let’s see how well these “neutral” definitions play out in assessing the just-finished term of the Court. Are Justice Breyer and the liberals the paragons of restraint that Rosen claims they are, even by his own definition?

First, some numbers. The Court heard oral arguments this past term in 71 cases, but thanks to some case dismissals and consolidations, 68 rulings were handed down with decisions on the merits (figures from SCOTUSblog’s summary). This was a historically light year for the Court’s workload (beware those calls for higher pay when underworked!). And by another measure, it was a pretty quiescent year too. By my reading of all the Court’s syllabi (the summaries prepared by the in-house reporter of decisions, tacked on the front of each case), there were only 18 non-unanimous rulings on matters of constitutional law in the term that began in October 2006 and ended in June 2007.* The other 50 rulings were on matters of statutory interpretation, intricacies of federal judicial procedure, and the like — or were matters of so little controversy on a constitutional question that they were decided unanimously.

If “defer[ence] to legislatures” is to be our benchmark for judicial restraint, we should toss all non-constitutional cases out of the analysis. Sometimes cases of statutory construction turn on whether to defer to executive agency interpretation of a law. But in choosing one reading of a statute over another, the Court cannot possibly fail to defer to the legislature that wrote the law, even if it rejects the reading another public actor preferred, or that some legislators themselves said they preferred. Activism is perfectly possible in cases of statutory construction, but it’s more easily discernible under a “normative” definition of activism than under a “neutral” one, and we’ve adopted the “neutral” definition here for the sake of argument. And under any approach, the problem of judicial activism — if it is a problem — is much more dire in constitutional cases than in statutory ones, since erroneous or unpopular judicial interpretations of statutes can be reversed by simple legislation. By any definition, activism vs. restraint is a phenomenon of greatest interest in constitutional cases.

So how did the justices vote in these 18 cases? Here’s how:


As we can see, in just 4 out of the 18 cases, Justice Breyer voted to uphold the challenged law, policy, or governmental action, or to rebuff the challenge on other grounds, while in the other 14 cases he voted to strike down the public authority, or to keep alive a challenge to it that justices on the other side voted to rebuff. Chief Justice Roberts, by contrast, was “restrained” 14 times out of 18, and “activist” only 4 times. Scalia and Thomas on one end were still more restrained, and Stevens on the other end still more activist, than Roberts and Breyer. Justice Kennedy batted .500, voting for “restraint” and “activism” nine times each — which suggests another thesis entirely about what activism consists of.

Some interesting tidbits emerge from the data. Chief Justice Roberts and Justice Stevens disagreed in every one of the 18 decisions and were clearly vying for control of the Court in constitutional cases. Roberts was on the winning side 13 times, Stevens only 5. Roberts’s victories included every case in which he voted for “activism” by the “neutral” definition; all of Stevens’s victories came in cases in which he voted likewise.

We can winnow the cases analyzed still further. Seven of the 18 were death-penalty cases, which are problematic for a number of reasons. The issues are often highly complex, thanks to the hash the Court has made of capital punishment in this country with its fraudulent reading of the Eighth Amendment over the past 30 years, now devolved into layers of ptolemaic epicycles. And there is sometimes a blend of statutory issues with constitutional ones, since Congress has weighed in on the endless farce of death penalty review with laws governing appellate processes and standards.

So we could drop the seven death-penalty cases and have just eleven other constitutional rulings. But not much changes, except the size of the advantage that the conservative justices have in “restraint” scores. All the justices keep their relative positions:



So much for Justice Breyer as a “convincing spokesman” for judicial restraint. But enough of this numbers game. What exercises liberal commentators is the importance of the cases in which the “conservative” justices voted in an “activist” fashion by the “neutral” definition. With the “conservatives” dividing in the Philip Morris case on a due-process limitation on tort damages, and also in a Sixth Amendment case from California concerning judicial imposition of a criminal sentence, there are just two cases where an argument might be made against all the “conservative” judges as a bloc: FEC v. Wisconsin Right to Life, on free speech under McCain-Feingold; and Parents Involved v. Seattle School District No. 1, on the assignment of students by race in Seattle and Louisville public schools. And these are, indeed, the two cases liberals are the most angry about.

If there are only two cases in which the Court was not unanimous, it decided a constitutional issue, the “conservative” justices all voted together, and they voted to invalidate another public authority’s decision, it may be time for critics of “conservative judicial activism” to drop the “neutral” definition. Being merely descriptive, that definition cannot itself serve as a way to criticize some judges and praise others. Activism “neutrally” defined (or restraint so defined, for that matter), is neither good nor bad; it just is. And if the intent is to accomplish the ju-jitsu move of catching conservative critics of judicial activism in the act of praising its practitioners, this is a pretty feeble move if all that liberals can come up with is two cases — after changing the definition of activism to one that conservatives reject!

Maybe the liberal critics of the WRTL and Parents Involved rulings could instead come up with arguments against the majority’s reasoning in those two cases. Some such arguments have appeared since those rulings came down, though I haven’t seen any particularly persuasive ones from liberals. One thing’s sure: hollering about “conservative judicial activism” without supplying such arguments amounts to just chicanery and distraction.

Matthew J. Franck is professor and chairman of political science at Radford University and a regular contributor to NRO’s “Bench Memos“ blog.

* The cases and their dates of decision are:
Ayers v. Belmonte, November 13
Cunningham v. California, January 22
Philip Morris USA v. Williams, February 20
Massachusetts v. EPA, April 2
Gonzales v. Carhart, April 18
Abdul-Kabir v. Quarterman, April 25
Brewer v. Quarterman, April 25
Smith v. Texas, April 25
United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt Auth., April 30
Scott v. Harris, April 30
Schriro v. Landrigan, May 14
Uttecht v. Brown, June 4
Fry v. Pliler, June 11
FEC v. Wisconsin Right to Life, June 25
Morse v. Frederick, June 25
Hein v. Freedom From Religion Foundation, June 25
Parents Involved v. Seattle School District No. 1, June 28
Panetti v. Quarterman, June 28



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