Bench Memos

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Still More on Judicial Activism


I was in meetings all day yesterday on my campus, and only had a little time last night to digest the remarks of Robert Alt, Rick Garnett, and Robby George and Gerry Bradley since my posting Wednesday on “judicial activism.” I have no quarrel with anything Rick said, so I’ll leave him out of what follows.

For Bench Memos readers, this discussion may already have reached the point of diminishing returns. But here goes anyway. Let me begin by suggesting that our entire dispute is about a phrase of probably very limited utility. “Judicial activism,” as some recent research shows, appears to have been coined by Arthur M. Schlesinger, Jr., in a January 1947 article for Fortune magazine (see Keenan Kmiec, “The Origin and Current Meanings of ‘Judicial Activism,’” 92 California Law Review 1441 [2004]), and in its early use it was a term of praise as often as of opprobrium. But I do believe in speaking and writing perspicuously, as Robby and Gerry put it, and I think that begins with using language in a way that, if possible, comports with common sense. And how anyone other than a legal scholar could call a judge who tolerates democratic decision-making, however wrongly, an “activist” is beyond me.

Robert Alt asks, “if a case is clear, and the law is profoundly unconstitutional, and the issue is plainly and properly before the court, then how can it be said that a judge is meeting his or her constitutional duty by committing the act of upholding the unconstitutional law?” Good question, but if he’s asking how I can say it, my answer is that I didn’t. What I did say is that a judge in such a situation has failed in his duty, but that it would make no sense to call that failure an instance of “activism,” since that word indicates an interference with democratic decision-making, not a letting it alone. Robert’s horrible hypothetical about censors coming after us here at NRO prompts this reply: would he call those federal judges who presided unquestioningly over Sedition Act prosecutions 200 years ago “activists”? I would not. And democracy, not judges, took care of the Sedition Act.

Of course, much turns on what we mean by an issue “plainly and properly before the court.” I would prefer to speak more exactly about whether a constitutional issue is plainly the court’s business to resolve at all. An undercurrent in the responses I’ve gotten is an implicit loyalty to the notion of judicial supremacy–that the Court has the final word on all constitutional questions it addresses, and that all constitutional questions are finally committed to it for resolution. But if the idea makes sense that some constitutional issues are “political questions,” matters properly decided by the other branches and not the courts–and this is an idea traceable back to Marbury v. Madison itself–then judicial supremacy is an affront to the Constitution itself. Some constitutional questions are conclusively committed to the nonjudicial branches of the government–and if they answer those questions wrongly, there is no judicial recourse for the unconstitutional action.

Robby and Gerry tend in the same direction as Robert Alt when they assert that “[e]very litigant in an American court . . . is entitled to have only constitutionally valid rules applied to him.” If what they mean is to state a judicially vindicable right never to be subject to unconstitutional action by the government–and they’ll be sure to let me know if that is an inapt characterization of their argument–then I can’t figure out what gave them this idea, since I can’t find it in the text of the Constitution, The Federalist, the early practice or opinions of the Supreme Court, the commentaries of any jurist in our early history, or the principles of Abraham Lincoln for that matter. This George-Bradley axiom would seem to make every constitutional question a judicial question (in principle if not in practice), and that’s asking for trouble, as Lincoln reminded us in his First Inaugural.

It should be clear by now 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. For most of its history, I think the Supreme Court held to this distinction too, although it began to collapse in practice by the turn of the twentieth century and was more or less obliterated in speech as well as in deed by the 1960s.

But let us suppose that both conditions are met: a law is unconstitutional and it is the business of a court to say so. Then it is a duty for it to say so, and it is wrong not to say so. But I don’t see what mileage there is in counter-intuitively calling it “activist” when it fails in this duty. Robby and Gerry say the judge in such a case would be an “accomplice to oppression.” That’s strong language, and it may in some interesting sense be true, but I can’t say I’m stirred by it. What the judge is decidedly not, on the other hand, is an obstructor of the majority will, which strikes me as a necessary component of activism. He is wrongly a facilitator of the majority will, but that is not the worst thing he can be, since remedies remain available to the people.

A historical example or two. Andrew Jackson appears to have thought the Supreme Court under John Marshall was “activist” (though Jackson didn’t have the expression) in McCulloch v. Maryland when it upheld the constitutionality of the Bank of the United States. (There are times when I read Justices Scalia and Thomas today and suspect they actually agree with Jackson, but that’s another matter.) Certainly Jackson thought the Marshall Court was mistaken, and let’s assume for a moment that he was right. His solution was simple: to veto the Bank’s re-chartering in 1832. By contrast, when Roger Taney’s Court struck down the prohibition of slavery in federal territories in Dred Scott in 1857, Lincoln’s Republican Party did not have such an easy response, because that was a truly “activist” decision, interposing wrongly in political decision-making. If this difference between wrong restraint and wrong activism isn’t self-evident, I’m near to giving up on English speech.

But now Robby and Gerry add another layer to their argument. Since they have defined “activism” in a special way conditioned by the style and materials that lead a judge to his decision or vote in a case, they now feel entitled to acquit all “originalists” of activism ahead of time. I am as wedded to originalism as they. But a plausible case can be made–has been made–that Taney practiced a kind of “originalism” in Dred Scott, that the Lochner Court did so in 1905, and that the Court that interfered wrongly with the New Deal in the 1930s did so as well. If the mistakes of these Courts were “honest” ones, then Robby and Gerry are willing to call them something other than activist. Perhaps they think these were not honest mistakes (or in one or two cases, not mistakes at all). But now the shoe is on the other foot! I wouldn’t hesitate to call them activist, and I won’t trouble myself to engage in the psychobiography of examining whether the judges made “some more or less conscious choice to substitute [their] judgment for traditional source material.” They wrongly interfered with democracy, and that is an end of it for me.

Open embrace of the “living Constitution” is a relatively recent phenomenon. Apparent allegiance to originalism is the main pattern in Supreme Court history, and it remains a strong thread running through much mistaken decision-making even today. In the state sovereign immunity cases of the last ten years, and even in the commerce cases, both factions of the justices claim the mantle of originalism, and in apparent good faith. By Robby and Gerry’s lights, there are no activists in those cases. I see it otherwise.

By now I have gone on too long, and I will have to leave it to another time, and perhaps a private exchange rather than this blog, to respond to Robert Alt about what I called the activism of Justices Scalia and Thomas. I will here rely only on the unsatisfactory argumentum ad verecundiam, and say that inasmuch as Scalia and Thomas part company with the infallible John Marshall (at least as I understand him), I remain their critic in these matters. Liberal law profs like Cass Sunstein who focus on the votes of Scalia and Thomas to invalidate federal (but not state) laws are marketing a half-truth, but not an untruth altogether, since it is actually hard for me to name the last time the Court properly undertook to strike down any federal law.


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