The New York Times likes judicial activism — as long as it is left-wing activism. But understandably, the Times bristles at being told that its favorite jurists (e.g., Breyer, Ginsburg) are activists, since the term is historically pejorative. It particularly dislikes those nasty finger-pointing conservatives who use the pejorative promiscuously (as the Times sees it) against liberal judges, without owning up to the fact (again as the Times sees it) that “conservative judges are as activist as liberal judges — just for different causes.”
So it was with great joy that the editors of the Times, in a Monday editorial, trumpeted the conclusions of an article soon to be published by Prof. Lori Ringhand of the law school at the University of Kentucky, which purports to prove that the conservative justices on the Supreme Court are at least as “activist” as the liberal justices.
Here is how Ringhand proceeded. Noting that the term “judicial activism” is commonly used to describe rulings that the user of the phrase holds to be incorrect, and that “[n]otions of constitutional correctness invariably depend on contested theories of constitutional interpretation,” Ringhand resolved to cut the Gordian knot of endless disagreement by employing an “objective” definition of “activism” that no one could contest — replacing the “normative” about which everyone disagrees with the “factual” about which everyone can agree. She would simply construct an activism scorecard for each of the justices by asking how often they voted a) to invalidate a federal law, or b) to invalidate a state law, or c) to overrule one of the Court’s own precedents. When the votes are tallied of the nine justices who served together from 1994 to 2005, what do you know? The conservatives such as Thomas and Scalia come out equally if not more “activist” than the liberals such as Breyer and Ginsburg. The conservatives are more “activist” in voting to overturn federal laws, while the liberals are more “activist” in voting to overturn state laws. The tie-breaker is the markedly higher propensity of conservatives to vote to overrule precedents. In the activism triathlon, the conservatives win two out of three events, and achieve the highest overall score.
No wonder the Times embraced Ringhand’s study. It provides the editors with a seemingly scientific tu quoque. But Ringhand cuts through no knots at all, and what she presents as a great achievement in clarification is in fact an exercise in obfuscation. For the fact is that for its entire history, the term “judicial activism” has been freighted with judgment, a prescriptive term and not merely a descriptive one. Ringhand’s reductionist attempt to be “objective” does not supply a new and sounder meaning to the term; it deprives it of any meaning at all. And it seems odd to watch a law professor approach this subject with an attitude that is dismissive of all the legal arguments that have raged about constitutional interpretation throughout our history. That kind of apparent hostility to legal reasoning, to the forms and practices of argumentation, coupled with a rather adolescent faith in the revelatory power of “data” that can be coded and counted, is more common among my benighted colleagues in political science than it is in the law professoriate.
I’ve already noted that “judicial activism” is unavoidably prescriptive, not just descriptive. Properly understood, it does not describe every species of jurisprudential sin. It does not, for instance, include every instance in which the Court declines to declare unconstitutional a law that is unconstitutional — not even every such instance in which the Court wrongly declines to act. We would need a name other than “activism,” after all, for a jurisprudence of acquiescence.
More importantly, “activism” cannot possibly refer to every instance in which the Court acts — since the “ism” has always carried a connotation of improper action, and not all action is improper. Hence Ringhand’s tallying of liberal justices’ votes to strike down state laws could be a sign of the propensity of states to violate the Constitution, and of the liberal justices to perceive rightly when this occurs. Or the same might be true of conservative justices’ votes to strike down federal laws. Or both could be true. But however useful Ringhand’s data might be in pursuing such interesting possibilities, the notable thing about her study is her steadfast refusal to pursue anything interesting at all. This is the price of her “objectivity.”
Her purported objectivity slips a bit in her third category — votes to maintain or to overrule precedents. It is one species of jurisprudential conservatism to abide by precedents. That’s a foundational practice in a common-law system. But it is of no signal importance to constitutional conservatism, nor to the practice of judicial restraint (the opposite of activism), to vote to preserve all or any particular precedents. If yesterday’s activists (liberal or conservative) set the precedents inherited by today’s advocates of restraint, can it be considered a proper part of their devotion to a reduced role for judicial power to preserve those precedents? To ask is to answer.
To say all this, by the way, is not to say that it couldn’t be successfully argued that the conservative justices are just as activist as the liberal ones. I have often argued so myself, for instance that the conservative wing of the Court is wedded to an extra-constitutional abstraction called “federalism” in its response to some acts of Congress. But one has to have an argument about constitutional meaning to carry that off. Mere data won’t do.
Activism, I think, can be pretty neutrally defined as the wrongful use of the power we call judicial review. (Not its wrongful non-use, though — see above.) Ringhand is right about one thing: that the arguments over when this happens and doesn’t happen are endless ones, because there is disagreement about what is right and what is wrong in interpreting the Constitution. I confess that I am still capable of surprise when someone thinks that because these disputes have never been resolved by universal agreement, there are no right answers. Wait, check that. No one does think any such thing. But some people, sometimes, find it intellectually stimulating to proceed as though it were useful to think so. It is not useful, nor really stimulating. Mostly, in fact, it is boring. More pointedly, it is obscurantist. One can sympathize with Ringhand’s frustration at the neverending debate. But call it off with a fake “solution”? That’s worse than carrying on, however wearily.
The Times is too honest in its devotion to liberal results to buy wholly into the Ringhand approach. Even while praising her study, the editors say “[t]he Supreme Court is supposed to strike down laws that are unconstitutional or otherwise flawed.” I would rather say “some laws that are unconstitutional” and drop the rest of that sentence. But how will the Times know when the Court is rightly striking down laws that are unconstitutional, or wrongly striking down unobjectionable ones? If it submits to the tutelage of Professor Ringhand, it won’t have a clue.
– Matthew J. Franck is professor and chairman of political science at Radford University, and a regular contributor to NRO’s Bench Memos blog.