Bench Memos

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RE: Activism


If Matt didn’t understand the post, then I wasn’t clear.

In his reply to Robert, Robby and Gerry, Matt argued, among other things, that for there to be judicial activism there must be “interference with democratic decision-making” and “obstruct[ion] of majority will.” (Of course, these are not necessarily the same thing.) Matt also said that “I regard the question whether a law is unconstitutional as separate from the question whether a federal court has any business ruling that it is.”

I was/am trying to flesh this out a little more by example. The massive administrative state Congress has created is no more responsive to democratic decision-making and majority will than the judiciary, which is why I used it as an example to question Matt’s points. (I anticipate Matt saying that Congress has the power to reign in the bureaucracy, so if the people want change, they can elect a new Congress. But Congress also has the power to reign in the judiciary, and not doing so doesn’t make the judiciary’s actions in certain respects any more constitutional.)

The federal court docket is clogged with lawsuits brought by tens of thousands of private citizens challenging the decisions of tens of thousands of unelected bureaucrats. I asked Matt whether it was judicial activism per se for a court to hear such cases, or if a court struck down an agency regulation whether that was judicial activism. (The point being that by acting, in Matt’s view would the judiciary be exercising power over, in essence, congressional authority given that these agencies are congressional creations?) He didn’t understand my questions, and I don’t understand his answer.

In fairness, Matt points out that I “explicitly” barred him from addressing the constitutionality of congressional delegation. Still, Matt did dip his toe into that water: “On the basic constitutional question of delegation vs. nondelegation, I would say that I favor noninterference by the courts (though there might be particular cases where I would conclude otherwise).” Having now commented, perhaps when Matt has the time and inclination he can elaborate.

Now, why did I so confound Matt by asking him to put aside the constitutional issue (the constitutionality of delegation) and focus on the jurisdictional issue (judicial authority)? Out of allegiance to Matt. In his reply to Robert, Robby and Gerry he wrote, “I regard the question whether a law is unconstitutional as separate from the question whether a federal court has any business ruling that it is.” Perhaps this bifurcated construct needs a little more work.

What does this have to do with judicial activism or judicial restraint, Matt asks? I believe judicial activism is more than “interference with democratic decision-making” and courts acting as “obstructors of majority will,” which seemed to be Matt’s emphasis in his earlier post. It’s certainly part of it. But it also includes, for example, federal courts interfering with private activity where neither they nor the elected branches have constitutional authority. While the framers certainly did not create a judicial oligarchy, nor did they create a parliamentary government.

I am out of time for now and gone for a day or so, but I shall return.


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