Bench Memos

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Response to Miles and Sunstein on Judicial Activism


In the Los Angeles Times today is my op-ed responding to a Monday op-ed in that paper by Thomas J. Miles and Cass R. Sunstein of the University of Chicago.  Here’s a core excerpt:


Miles and Sunstein breezily assert that run-of-the-mill cases reviewing the actions of federal administrative agencies, rather than “high-profile constitutional rulings,” provide the best measure of which Supreme Court justices are most activist. That assertion is badly flawed.

First, unlike a Supreme Court ruling that finds a federal or state law unconstitutional, a ruling that invalidates federal agency action as contrary to statute does not end the political processes. On the contrary, Congress is free to revise statutory law to permit or even require the same agency action. Further, in the frequent instances in which the agency has merely failed to follow proper procedures, the agency itself is free to redo its work and achieve the same result.

Second, federal bureaucrats are themselves insulated from, and not directly accountable to, American citizens. They are not, and are not intended to be, representatives of the American people, as legislators are. Thus, a court’s mistaken overturning of bureaucratic action does not present the direct clash with principles of representative government that judicial activist rulings on constitutional issues produce.

Tags: Whelan


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