It’s not just a question of “restraint” versus “activism.”
What is the proper role of courts in our system of government? Ever since the seminal decision in Marbury v. Madison (1803), the concept of judicial review has made the courts — and in particular the U.S. Supreme Court — the ultimate arbiter of whether a state or federal law violates the Constitution. Just as baseball umpires are sometimes criticized for their calls on the playing field, the exercise of judicial review has periodically exposed the Court to complaints that it has erred either by being too aggressive in striking down laws (in conventional parlance, “judicial activism”), or by not being aggressive enough in overturning laws (sometimes called “judicial passivity”). This is a longstanding argument among all political camps, but it became a topic of controversy on the right this January, when, speaking at the Heritage Foundation, Senator Rand Paul endorsed “judicial activism,” igniting a debate between libertarians, who tend to see judicial review as a constraint on majoritarianism, and conservatives, who tend to see it as a font of judicial activism. In reality, it has been both, as the Court’s role and national politics have changed over time. In order to understand the debate, one must reach beyond the superficial labels “activism” and “restraint,” and one must also consider the complicated lineage of modern judicial review.
In 1803, Chief Justice John Marshall famously declared that “it is emphatically the province and duty of the judicial department to say what the law is,” thus establishing in American constitutional law the doctrine of judicial review. The separate but related concept of “judiciary supremacy” holds that judges have the final word in matters of constitutional interpretation. In present-day usage, the two terms are often (albeit imprecisely) conflated, and this essay addresses “judicial review” in that generic sense.
To many Americans, the notion that unelected judges can overrule the other two branches (but not vice versa) seems counterintuitive. Seeking to avoid tyrannical abuses such as those they had experienced under King George III, the Framers divided the federal government’s enumerated powers among the separate branches, carefully designing a scheme of checks and balances to ensure that excessive power not reside in any of the branches. Perhaps naïvely, Alexander Hamilton, writing as “Publius” in Federalist No. 78, asserted that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution,” because the courts — lacking the legislature’s power of the purse or the executive’s “sword of the community” — have “neither Force nor Will, but merely judgment.” Today, in fact, the nine Justices on the U.S. Supreme Court wield tremendous power, often sitting as a super-legislature to second-guess the policy decisions of the 50 states over everything from marriage to abortion, and to divine the validity of congressional enactments such as Obamacare (a.k.a. the Patient Protection and Affordable Care Act).
The debate over the role of the courts in our system of government inevitably focuses on the counter-majoritarian dilemma inherent in a constitutional democracy. On the one hand, our supreme (indeed, defining) law is a written Constitution, whose terms are enforced by a life-tenured, unelected judiciary, and which can be amended only by a super-majority of voters. By design, the Constitution denies certain political choices to simple majorities of voters. On the other hand, in order for democracy to have meaning, citizens must be allowed, within limits, to govern themselves — that is, to make political decisions affecting their lives by enacting laws through their representatives in Congress. And when judges strike down democratically enacted laws without a genuine constitutional basis, they are illegitimately exercising raw political power. Government by judiciary amounts to judicial tyranny.
Regarding the labels, the term “judicial activism” is often employed to criticize a court whenever it reaches an unpopular decision. Likewise, the term “judicial restraint” is often used to compliment a court for declining to overturn a challenged law. This dichotomy is simplistic. Courts should strike down laws when they are unconstitutional (but not otherwise), and, conversely, they should uphold laws that are constitutional. A court truly engages in “activism” (i.e., exceeding its proper role) only when it interferes with the political branches without a valid constitutional basis. The debate regarding the proper role of judges should not be over judicial review per se, but over the particulars of the Court’s interpretation of the Constitution. Certain provisions have been improperly ignored for decades, while the Court has invented new “rights” that are not contained in the Constitution. Both are equally serious forms of dereliction.
In a now-controversial series of decisions during what is often described as “the Lochner era” – that is, the period from 1897 (Allgeyer v. Louisiana) through 1937 (West Coast Hotel Co. v. Parrish), the Supreme Court repeatedly overturned state and federal laws that interfered with the “freedom of contract” of employers and employees in the regulation of working conditions. Were these decisions “activist”? Justice Oliver Wendell Holmes thought so. Holmes acerbically dissented in Lochner v. New York (1905), in which the majority struck down a state law regulating the maximum hours bakers could work, stating that the “Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Holmes’s view ultimately prevailed. Cowed by FDR’s threat to “pack” the Court in retaliation for striking down key pieces of New Deal legislation, the Court in 1937 abandoned its protection of economic liberties (“the switch in time that saved nine”) and laid the groundwork for the “judicial passivity” in that area that continues to this day. Shortly after reversing the “substantive due process” doctrine represented by Lochner, the Court in United States v. Carolene Products Co. (1938) introduced the “rational basis” standard of review, pursuant to which economic regulation would henceforth be accorded a presumption of constitutionality and upheld as long as it was not arbitrary or irrational. The Court’s reversal of the Lochner line of cases enabled the New Deal legislation, the alphabet soup of administrative agencies, and the limitless interpretation of Congress’s power under the commerce clause, as in Wickard v. Filburn (1942), which have developed into the Leviathan that is our present federal government.
But the Court did not become passive across the board. Footnote 4 to the 1938 Carolene Products decision prescribed a more exacting standard of review (“strict scrutiny”) for laws that impinged on a right expressly protected by the Constitution or that were directed against “discrete and insular minorities.” Footnote 4, the most famous footnote in constitutional law, ushered in modern “equal protection” jurisprudence under the Fourteenth Amendment. Thus, in Brown v. Board of Education (1954), the landmark rejection of Plessy v. Ferguson (1896) and its segregation-enabling doctrine of “separate but equal,” the Court found that it could exercise its mere “judgment” quite effectively, despite the lack of sword or purse. In one judicial stroke, the Court ended all state-sanctioned segregation, a bold and transformative ruling. Brown is canonized now, and the result — which was politically inevitable — is unassailable, but the reasoning of the decision was controversial in its day, provoking Columbia Law School professor Herbert Wechsler to write a cautionary (and frequently cited, albeit largely disregarded) article in the Harvard Law Review entitled “Toward Neutral Principles of Constitutional Law” (1959). That was then. Driven by a half-century of expansive constitutional-law scholarship in the academy, the mainstream no longer recognizes such misgivings, and anyone today expressing doubt over the wisdom or legitimacy of Brown would be treated as a heretic. In 2015, Wechsler would probably be unable to get his article published, and such unfashionable opinions would keep a young academic from gaining tenure (or Senate confirmation).
Emboldened by Brown, during the 1960s and 1970s the Court — under the leadership of Chief Justices Earl Warren and Warren Burger (both appointed by Republican presidents!) — went on an orgy of judicial activism, constitutionalizing criminal procedure (Miranda, Brady, Mapp), apportionment and voting rights (Baker v. Carr [1962], Reynolds v. Sims [1964]), welfare rights, and a host of other areas previously thought to be the domain of the states. The Supreme Court ordered busing to achieve racial balance in public schools; recognized the theory of “disparate impact” in employment discrimination; created a right to abortion (Roe v. Wade [1973]); declared the death penalty unconstitutional as currently applied (in an unsigned per curiam decision with no majority opinion!) and then changed its mind four years later; made obscenity and pornography protected expression; expanded the supposed “wall of separation” between church and state; interfered in the operation of public schools; authorized race-conscious affirmative action in higher education; and generally advanced a liberal political agenda at every opportunity.
Liberals celebrated the Warren Court’s so-called “rights revolution,” but not everyone was jubilant. Conservative legal scholars such as Robert Bork and University of Texas Law School professor Lino Graglia were so dismayed by the Court’s decisions, particularly those based on the Fourteenth Amendment’s equal-protection and due-process clauses, that they argued for an end to judicial review altogether. At the same time, ingenious constitutional law “theorists” on the left devised ever more esoteric arguments for judges to ignore the text of the Constitution and instead to decide cases on the basis of “noninterpretive” (and therefore wholly subjective) reasoning.
This was the backdrop for much of the conservative scholarship regarding judicial review since the 1970s. The tide turned a bit under Chief Justices Rehnquist and Roberts, at least after a tenuous 5–4 conservative majority formed, slowing — and in some cases reversing — the momentum of Warren Court activism. (Some commentators will cringe at my characterization of Justice Anthony Kennedy — usually viewed as a swing vote — as a “conservative,” in the light of his proclivity to align with the liberals from time to time, as in Planned Parenthood v. Casey (1992), in which he authored the much-derided “mystery passage”; but that is why I use the qualifier “tenuous.”) The loss of liberal hegemony on the Court prompted some prominent scholars on the left, such as Harvard Law School professor Mark Tushnet — a leading proponent of the Marxist-inspired Critical Legal Studies — to advocate a diminished scope of judicial review. When the politics of the Supreme Court shifted directions, in other words, Tushnet (from the left) adopted the same judicial-restraint arguments previously advanced (from the right) by Bork and Graglia. This does not necessarily make Tushnet (who clerked for Justice Thurgood Marshall and played a role in formulating Justice Harry Blackmun’s infamous opinion in Roe v. Wade) a hypocrite. Many respected scholars and jurists from different points of view have advocated (to varying degrees) “judicial restraint,” i.e., deference to the political branches, including federal judge Learned Hand, Yale Law School professor Alexander Bickel, Justice Holmes (who in Buck v. Bell [1927] upheld a Virginia law authorizing compulsory sterilization of the “feeble-minded,” declaring that “Three generations of imbeciles are enough”), and, more recently, Fourth Circuit judge J. Harvie Wilkinson III.
During the heyday of Warren/Burger Court activism, most conservatives hewed to the “judicial restraint” position, and even invoked the specter of the “discredited” Lochner era to add rhetorical force to their position. This led conservatives to disagree with libertarian proponents of economic liberties and property rights (such as University of San Diego Law School professor Bernard Siegan and then–University of Chicago Law School professor Richard Epstein, against both of whom Bork directed rebuttals in his influential 1990 book The Tempting of America). I for one wondered whether conservatives really disapproved of the Lochner era, or just said so because they felt that the constitutional protection of economic liberties (effectively repudiated by the Supreme Court in the 1937 West Coast Hotel v. Parrish decision) was a dead letter, and that joining liberals in condemning it somehow strengthened their case against judicial activism in other areas.
In recent years, the libertarian position has become more respectable on the right, as a result of several factors, including a renaissance of scholarship on economic liberties (by Richard Epstein, David Bernstein, Randy Barnett, Timothy Sandefur, and others), a budding sense of confidence in the durability (if not perfect reliability) of the current 5–4 conservative majority on the Supreme Court, and, perhaps most importantly, a growing unease with the massive growth of the federal government in recent decades, during both Republican and Democratic administrations, accompanied by unfathomable amounts of national debt, and crowned by the passage of egregious laws such as the TARP bailout, stimulus boondoggles, Obamacare, Sarbanes-Oxley, Dodd–Frank, and McCain–Feingold. Libertarians are rightly appalled by the excesses of the IRS, EPA, ATF, NSA, NLRB, DOJ, HUD, and administrative agencies generally. Given the seemingly endless expansion of the federal government under the direction of the executive and legislative branches, and spectacular governmental ineptitude such as the role of Fannie Mae and Freddie Mac in the financial crisis of 2008, many libertarians are concluding that the judiciary might be the least dangerous branch after all. Thus, the Rand Paul speech and the ensuing controversy. Paul is the highest-profile figure on the right to give a full-throated endorsement to “judicial activism,” long considered the exclusive domain of liberals.
In evaluating this debate, a few points must be kept in mind. First, attitudes about the proper role of the courts are not static; they shift over time, and can be highly political (and therefore unprincipled). President Reagan nominated Robert Bork to the Supreme Court and Bernard Siegan to the Ninth Circuit Court of Appeals, and indicated his intention to nominate Lino Graglia to the Fifth Circuit (but ultimately declined because of vociferous opposition orchestrated by the liberal American Bar Association) — all highly qualified scholars (especially Bork). Sadly, neither Bork nor Siegan was confirmed by a Democratic-controlled Senate, supposedly because they were deemed “out of the mainstream.” In reality, the political establishment feared that they would, if confirmed, alter the doctrinal status quo. Second, libertarians would be wise to recall Learned Hand’s admonition that “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.” The current 5–4 conservative majority is transitory; all it would take is one more vote added to the current liberal bloc of Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg to have a 5–4 majority going the other way. Third, just because judges wear black robes and accompany their edicts with solemn ceremonies and written opinions does not prevent their decisions from being arbitrary or even made in bad faith. If one needs a reminder of this fact, just consider the track record of the notorious scofflaw Judge Stephen Reinhardt and his activist colleagues on the Ninth Circuit, who regularly flout precedent and decide cases on transparently ideological grounds. Fourth, libertarians who feel alienated from the statist political culture that dominates inside the Beltway should be aware that the culture of the legal establishment — as reflected by legal academia and the organized bar, where many judges are groomed — is even worse. Pick up a law review or take a look at the course catalog of any top-tier law school, and you will be dismayed at the utter lack of balance in the legal academy these days. Finally, the Court’s decision in Roe v. Wade represents a litmus test for conservatives, and if libertarians ever hope to win the support of their conservative colleagues, their methodology for constitutional decision-making must not be so expansive (and unmoored to the Constitution) as to condone that execrable ruling.
Some libertarians, such as the Institute for Justice’s Clark Neily, in Terms of Engagement (2013), argue that courts should approach all legislation with a presumption of unconstitutionality, which the government should have the burden of overcoming by showing that the law is the least restrictive means to achieve an actual, bona-fide governmental objective. This process, which Neily terms “judicial engagement,” would replace the deferential “rational basis” review that courts now use to review the constitutionality of laws when no “fundamental rights” are involved. (Unfortunately — and here I agree with Neily — most economic liberties and property rights unjustifiably lost their status as “fundamental rights” in the 1938 Carolene Products decision, and the Court has improperly abdicated its duty to protect those rights.) Neily’s model would surely constrain the executive and legislative branches, but at the expense of unduly enlarging the power of the judiciary. It would also be unworkably inefficient. Neily advocates strict scrutiny across the board, because he views the exercise of majoritarianism (i.e., the right of political majorities to enact laws) as an infringement on individuals’ inherent (and not necessarily enumerated) constitutional rights.
Neily’s argument is well intentioned, but — in addition to representing what he admits is a “radical change” — utterly impractical. Imagine that a driver got a speeding ticket for going 80 in a 65 MPH zone. Imagine further that the driver challenged the ticket on the grounds that it violated his “inherent” and “reserved” constitutional right to drive as fast as he wanted. Should the government really have to prove that a 65 MPH speed limit on the road where the driver was ticketed is the least restrictive means to achieve an actual, bona-fide governmental objective? Now imagine the same process for every criminal law, every municipal ordinance, every administrative regulation, every exercise of the state’s police power — health and safety, zoning, noise regulation, abatement of nuisances, and so forth. All legislative enactments would, in theory, have to be justified to a reviewing court under a strict-scrutiny standard. Judges would have more power than legislators, rendering democratic self-government a feeble charade. The legal challenges would be interminable. The result would be a judicially managed state of anarchy.
In Overruled (2014), a historically rich and elegantly written treatment of judicial review, Reason magazine senior editor Damon Root advocates a somewhat more nuanced position. Root contends that judicial passivity was a tool of the Progressive movement, which believed that the human condition could be improved — even perfected — through government intervention. Holmes, the best-known proponent of “judicial restraint,” was a Progressive who deferred to the legislature on most matters, even (as in Buck v. Bell) eugenics. Root contrasts Holmes with Stephen Field, a nineteenth-century classical liberal who over a 34-year career on the Supreme Court (1863–1897) laid the groundwork for the Lochner era. Root traces in great detail the evolution of conservative and libertarian legal movements over the past several decades, and the background of some leading Supreme Court decisions, such as the landmark Second Amendment ruling in District of Columbia v. Heller (2008) that this new vanguard of lawyers won (and some that they lost).
However, Root is less compelling when he tries to explain the arc of modern constitutional law through the prism of Holmes’s “restraint” and Field’s “activism.” Root contends that Field’s jurisprudential approach is consistent with the Court’s recognition of abortion rights, the right to engage in homosexual sodomy (Lawrence v. Texas [2003]), and (as appears to be imminent), same-sex marriage. In other words, all assertions of judicial power are consonant — even equivalent. This extrapolation is both facile and misplaced. Unlike modern-day libertarians such as Barnett, Neily, and Sandefur, Field did not subscribe to the theory of unenumerated rights (i.e., that all legislative actions are presumptively unconstitutional). As is evident even from his dissent in the Slaughter-House Cases (1873), Field believed in the “police power” — the inherent right (enshrined in the Tenth Amendment) of political majorities to govern themselves, especially in matters regarding health, safety, and morals. Moreover, there is a great deal of historical and common-law support for “freedom of contract” and other economic liberties — long predating the Constitution — whereas there is no such support (or textual basis) for gay rights, abortion rights, or recognition of same-sex marriage.
Even Chief Justice John Marshall, who as the author of Marbury v. Madison is the father of judicial review, recognized that courts should exercise that power with “much delicacy” and should declare a law unconstitutional “seldom, if ever, . . . in a doubtful case” (Fletcher v. Peck [1810]). Marshall clearly did not subscribe to a presumption of unconstitutionality or the belief that the Constitution brimmed with unenumerated rights. It was also in Fletcher v. Peck that Marshall stated: “It is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” (Emphasis added.) In other words, Marshall believed that courts should defer to the legislature unless the law is clearly unconstitutional, an approach that we would now characterize as judicial restraint.
The libertarian mind seems unwilling to accept that judges can, on a principled basis, strike down some majoritarian laws and uphold others. Holmes and Field can both be right, depending not on the strength of the government’s legal argument so much as on the force of the constitutional right being asserted. This leads us to Senator Paul’s brief remarks to the Heritage Foundation. Paul, like Neily, seems to think that when judges strike down laws, they necessarily promote individual liberty, apparently forgetting that judges, too, are government officials — just like legislators. Thus, Paul applauds what he (imprecisely) calls “judicial activism” and supports the Court’s rulings in Lochner and Brown. It is ironic that a sitting legislator would subscribe to the position that all laws are, if challenged, presumptively unconstitutional, but (citing Sandefur) Paul makes just that claim. Curiously, Paul equivocates when it comes to “reproductive privacy” decisions such as Roe v. Wade and Griswold v. Connecticut (1965). Paul states: “I don’t think that Roe is as clear cut as far as restraint or activism,” which is odd because Roe v. Wade is universally regarded by conservatives as the quintessential activist decision. To be generous, Paul’s remarks were not intended to be a definitive statement of policy; rather, they were provocative and apparently intended to focus some attention on a dry topic that is not often aired in public.
So what should courts do? The answer is, “It depends.” The options are not binary — either defer in all cases or overturn the law in all cases. That is a false dichotomy. Our supreme law — ratified by the states and binding on succeeding generations — is the Constitution (not the Declaration of Independence). The Constitution embodies legitimate rights, which the courts are not just permitted, but obligated, to enforce. At the same time, the Supreme Court has invented many “rights” that appear nowhere in the Constitution and are, in fact, entirely the product of the justices’ own personal predilections. (On the merits, Bork’s and Graglia’s critiques of the Warren/Burger Courts are correct.) Such predilections have no juridical weight and are entitled to no moral respect. Therefore, if a legitimate constitutional right is implicated, a court does not engage in “activism” by striking down a law that violates it. That is the court’s duty. Indeed, the court would be guilty of passivity (or outright abdication) if it upheld the law. Courts are supposed to uphold laws that do not violate a legitimate constitutional right, no matter how foolish the judges may think they are. That is exercising “judicial restraint” (a good thing). Conversely, if a court fails to strike down a law that does violate the Constitution (as the Supreme Court arguably did with Obamacare in NFIB v. Sebelius [2012]), it is not engaged in “judicial restraint,” but is guilty of passivity/abdication (a bad thing). However, giving the Court carte blanche to overturn laws for reasons not grounded in the Constitution invites judicial usurpation, which is both unprincipled and undemocratic. (For this reason, theories of constitutional law grounded in “natural rights” jurisprudence are impractical; conceptions of “natural rights” are both amorphous and highly subjective, and invite judges to indulge their personal predilections.)
Applying this matrix is easy. The tricky part is determining which rights are legitimately embodied in the Constitution. As mentioned earlier, since 1937 the Supreme Court has frequently strayed far from the text adopted by the Framers and ratified by the states — both ignoring certain provisions and concocting others out of whole cloth. Fortunately, legal scholars have developed techniques (originalism, textualism, interpretivism) to facilitate the inquiry into what the Constitution means and how it should be interpreted. My personal opinion is that in 1938, the Supreme Court erroneously subverted the hierarchy of constitutional rights by subjugating economic liberties and property rights to so-called (and sometimes imaginary) “personal rights.” (All of this accomplished in a footnote to Carolene Products!) Since then, the Supreme Court has applied “rational basis” review to economic regulation and upheld virtually all of it. On the other hand, the Court has subjected any laws affecting “discrete and insular minorities” to a “strict scrutiny” that is nearly always fatal (Grutter v. Bollinger [2003], the University of Michigan affirmative-action decision, may be the sole exception).
Laws that do not infringe on legitimate constitutional rights should be reviewed under a rational-basis test, and upheld. Laws that affect a fundamental right should be subject to strict scrutiny. The Court has been applying the right tests; however, it has inverted the priority of the rights to be protected. Libertarians and conservatives should not quarrel over the labels “activism” and “restraint.” Depending on the case, and the applicable constitutional interest at stake, sometimes the correct result will be to overturn a challenged law, and sometimes to uphold it. Neither course is a priori preferable to the other, and (pace Neily) neither necessarily advances freedom.
The more productive dialogue, which is long overdue, would address the intended scope of the commerce clause, the significance of the Fourteenth Amendment’s “privileges or immunities” clause (rendered a dead letter in the Slaughter-House Cases, over Justice Field’s dissent), the constitutional limits of the administrative state, the validity of New Deal precedents that stripped economic liberties of meaningful protection, methods for invigorating the Fifth Amendment’s “takings” clause, and other neglected constitutional limits. Libertarians and conservatives can reach consensus on these matters without denigrating majoritarianism in the abstract (after all, the Constitution begins with the words “We, the people . . . ”), legitimizing the activism of the Warren Court, exonerating the travesty of Roe v. Wade, or waging an internecine war of words. Libertarians and conservatives have far more in common with each other than they do with liberal judges who have long abused judicial review to promote left-wing policies. Limited government and representative democracy are not incompatible. We can honor the Constitution and protect individual rights without surrendering control to unelected judges.
Properly understood and applied, judicial review reconciles the (sometimes) competing values of liberty and democracy. As Justice Robert H. Jackson stated in 1949 in one of the most prescient passages of constitutional law (in Terminiello v. Chicago): “This Court has gone far toward accepting the doctrine that . . . all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is a danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Amen.