Dispatches from the Creation Wars

I am back after a few days away, and while I was gone there has been some discussion in the comments about judicial activism. I don’t wanna go back and answer all of those comments individually at this point, having written a great deal on the subject in the past. Let me give a brief overview of my perspective on it instead. I don’t think the phrase “judicial activism” is inherently meaningless, but I do think the manner in which it is typically used is incoherent and inconsistent. As a general rule, I think its usage in political debates about the courts is practically meaningless because it has become little more than a catchphrase that means “decisions I don’t like.”

Keenan Kmiec had a very interesting article in the California Law Review last year called The Origin and Current Meaning of “Judicial Activism”. In it he looks at the historical usage of the term, which was evidently coined by Art Schlesinger in 1947, and at the various ways in which it is used today. He writes:

Ironically, as the term has become more commonplace, its meaning has become increasingly unclear. This is so because “judicial activism” is defined in a number of disparate, even contradictory, ways; scholars and judges recognize this problem, yet persist in speaking about the concept without defining it. Thus, the problem continues unabated: people talk past one another, using the same language to convey very different concepts.

He identifies at least 5 different meanings of the term as it is used by legal scholars, and that only begins to scratch the surface of the varied ways it is used by non-scholars in the course of political debates. Patterico, in a comment on a thread below, offers the following definition, which he says is “roughly in sync” with his own views:

The practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of or in opposition to supposed constitutional or legislative intent.

It’s an interesting definition both for what it includes and what it leaves out. Notice first that it is limited only to those cases which either protect or expand individual rights. This is in line with at least one of the most commonly heard usages of the term. We tend to hear the complaint of “judicial activism” most often in response to cases which found that a given statute violates a legitimate assertion of unenumerated rights, like Griswold, Loving, and Lawrence. But why should it be limited to such cases? Certainly if judidicial decisions can overstep their proper boundaries, they can do so in cases that do not involve the finding of an unumerated right. Why do we hear so often the charge of judicial activism specifically in cases of unenumerated rights?

I maintain that we hear this complaint largely because what has become known as originalism or strict constructionism, which forms the basis for most conservative judicial theory, has a fatal error at the core when it comes to unenumerated rights. I have dealt with this in much more detail many times previously, particularly as it regards the judicial philosophy of Robert Bork and Justice Scalia and their take on the 9th amendment. For a reasonably full exposition of my views on this, see here.

Perhaps the second most common usage of the phrase “judicial activism” is when it is used to mean “unelected judges thwarting the will of the people as expressed through their elected representatives” or something similar. This is perhaps the most obviously absurd usage because, obviously, the courts were empowered to do precisely that and everyone thinks that the courts should do that when they think the legislature has passed unconstitutional legislation. Usually when we hear “judicial activism” used, it is some combination of the previous two usages.

Randy Barnett nailed this issue perfectly in this post in response to Stephen Bainbridge and Robert Bork in May of 2004:

Both posts beg the question: what exactly IS judicial activism? Unfortunately, apart from his reference to “democratic values,” Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in his infamous confirmation testimony?

Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an “ink blot” on the Constitution, as Robert Bork did in the Tempting of America?

Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

Is it activism to construct a doctrine to define the wholly unenumerated “police power” of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

And Barnett comes to essentially the same conclusion that I do:

Judicial “activism,” as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error…

Either striking down ANY properly enacted statute is “activism” because it thwarts the “will” of a majority of legislators, in which case all judicial review is activism, notwithstanding the original meaning of “the Judicial Power” in Article I. Or before hurling the charge of activism, we must first decide whether a statute violates the original meaning of the text. This is something that requires evidence and effort, and many use the epithet “activism” to avoid messy issues like determing the meaning of the Constitution. Far easier is it to accuse judges of practicing, or law professors of favoring, some sort of vague “process” impropriety called activism.

I’m sure there will be more discussion on this in response to comments.

Comments

#1 John
July 5, 2005

Even under the definition the Patterico posted, I wouldn’t call Griswold, Loving, and Lawrence examples of Judicial Activism.
#2 raj
July 5, 2005

It strikes me as an unproductive waste of time to spend a lot of bandwidth on the meaning of “judicial activism.” Judges have been making law for millenia. The judiciary is where “common law” came from. But in past decades the epithet “judicial activism” has become nothing more than an epithet signifying an attack on the judiciary by members of the more overtly political branches. It means nothing more than “I don’t like the decision(s)”

Regarding “unelected judges,” I’ll merely point out that most judges are, indeed, elected. Which is why I have started referring to them as politicians in black robes. And, moreover, there are mechanisms at the political level for overturning their decisions. Why they don’t use the mechanisms, I don’t know. Actually, on second thought, I do know. Those politicians want itches get the rubes to scratch for their re-elections. They could probably have passed a constitutional amendment overturnining RvW years ago, but they don’t want to. It’s hilarious the way that the US politicians are manipulating the populace.
#3 KipEsquire
July 5, 2005

About the only examples I can think of that may rise to level of true “judicial activism” are the “school funding” directives in New York and more recently Kansas. I simply do not understand what legal theory authorizes a court to dictate specific fiscal policies (e.g., “you must spend $X billion on public education”), a power clearly understood by all to reside with legislatures.
#4 Raging Bee
July 5, 2005

Bork referred to whole Amendments to the Constitution as “ink blots?” Damn, he’s even loopier than my liberal friends say he is!
#5 John
July 6, 2005

I think KipEsquire makes a good point. I would add school bussing plans (for integration).
#6 raj
July 6, 2005

Kip, you must be a bit young. I remember the public school defunding issue arising in (I believe it was) Prince William County VA in the 1960s or early 1970s. If memory serves, they wanted to dismantle the entire public school system, to avoid desegregation. I don’t recall the reasoning of the (federal) courts to stop it, but they did.
#7 Matthew
July 6, 2005

I think where chargers of “judicial activism” screw up is in basing that charge on the decision, when the only honest way to determine judicial activism would be based on the opinions of the judges.

You can’t call someone a judicial activist just because they have different constitutional interpretations than you. It would be very dangerous to highjack the consitution like that.

So based on the opinions, you’d have to say Kelo was not an example of judicial activism, however wrong you think it is, because the opinions were based on (flawed) constitutional interpretation. There are other cases out there where the judges were clearly not acting on constitutional interpretation though. I’m not sure of the case’s name, but the one where a judge denied a lesbian mother custody because she is a lesbian and his decision was nothing more than a rant against homosexuality. That is a clear example of judicial activism, but it has nothing to do with what the decision is, rather the reasoning for coming to the decision.
#8 Dave S.
July 6, 2005

Kip, you must be a bit young. I remember the public school defunding issue arising in (I believe it was) Prince William County VA in the 1960s or early 1970s. If memory serves, they wanted to dismantle the entire public school system, to avoid desegregation. I don’t recall the reasoning of the (federal) courts to stop it, but they did.

raj,

I think you refer here to the policy of Massive Resistance called by Virginia Senator Harry F. Byrd, Former Governor John Battle, and Congressman Bill Tuck, among others – after the Brown v. Board of Education decision in 1954. This resulted in the closing of public schools in Prince Edward county rather than desegregate them.

The court opinion, Griffin v. County School Board of Prince Edward County (Va.), can be found here:

http://www.brownat50.org/brownCases/PostBrownCases/GriffinvPrEdCoVA1964.html
#9 John
July 6, 2005

Matthew,

Are you talking about Bottoms vs. Bottoms? (Virginia)

If so, I would not even call this a case of judicial activism.

If we are talking about the same case then, the bottom (no pun intended) line was:

“It found that felonious sexual conduct inherent in lesbianism was an important consideration in determining the mother’s unfitness for custody of the child,…”

This, of course, was before Lawrence.
#10 Matthew
July 6, 2005

No, the case I am thinking of is very recent, this year in fact. I did a google search and found that Bottoms was in 94, correct?

The case I am thinking of, I believe, was in Alabama, but maybe Mississippi…. I’m not sure. I would agree with you that this Bottoms decision doesn’t sound like judicial activism. The case I’m referring to was nothing but a rant against homosexuality.
#11 John
July 6, 2005

Could it be “Roy Moore Rides Again”

http://www.sodomylaws.org/usa/alabama/alnews20.htm
#12 afsgtsam
July 6, 2005

Get ready for a real nasty battle, this is all about political power and the left is so far out of power now they will attack anything that moves with a conservative label. This confirmation will not go smoothly no matter who Bush nominates.
#13 Ed Brayton
July 6, 2005

afsgtsam wrote:

Get ready for a real nasty battle, this is all about political power and the left is so far out of power now they will attack anything that moves with a conservative label.

But it is every bit as much about political power for the right as well as the left. The courts are the one branch of government that the right does not have exclusive control over at this point and they are trying to consolidate that power. Their political opponents are trying to stop them from doing so. That is how an adversarial system is supposed to operate. The only thing that should matter is what is true and accurate, and neither side can lay much claim to that. I expect both sides to engage in massive distortions of the record of the prospective candidate, and I expect to spend a lot of time writing this summer to debunk the nonsense coming from both sides.
#14 worm eater
July 6, 2005

Does anyone have a reference for the “ink blot” quote from Bork (referring to the ninth amendment)? I would be interested to see the context in which he said that. Or is that not a literal quote?
#15 John
July 6, 2005

“I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.”

http://www.randybarnett.com/rightsbypeople.html
#16 Dan
July 6, 2005

Balkin has put up a federalism post — good, as always.
#17 raj
July 6, 2005

Dave S, you’re right. I was working from an obvious faulty memory.
#18 Patterico
July 6, 2005

Ed,

I agree with a lot of what you say, especially this: “I don’t think the phrase “judicial activism” is inherently meaningless, but I do think the manner in which it is typically used is incoherent and inconsistent.”

I didn’t put a lot of thought into the definition that I cited. My main point in citing that definition was to use it as a contrast for the definition that I see so widely used: activism is simply striking down legislative acts, regardless of their constitutionality. That is a dim-witted and simplistic definition, but it is surprisingly widespread — Michael Kinsley uses it, and it is the basis of this silly NYT piece by a couple of law professors who should know better.

Do these professors really think Antonin Scalia was a judicial activist when he voted to uphold the right to burn the American flag in Texas v. Johnson? Of course not.

So why do folks like Kinsley or these law professors use that definition? Because it allows them the chance to pretend that conservatives are more activist than liberals. That’s the whole reason; nothing more.

I agree that the definition above is lacking in several respects, which you have spelled out nicely in your post (not *all* of which I agree with, but much of which I agree with). But it makes a lot more sense than the other view.
#19 Patterico
July 7, 2005

Correction: the silly NYT piece was by a Yale law professor and a recent grad.
#20 Ed Brayton
July 7, 2005

Patterico wrote:

So why do folks like Kinsley or these law professors use that definition? Because it allows them the chance to pretend that conservatives are more activist than liberals. That’s the whole reason; nothing more.

I think there’s a bit more to it than that. I’ve seen the phrase used this way in a historical context, and I think it’s useful in that context. For instance, I’ve seen historians use the term when comparing how “active” various courts were in striking down legislation versus another court. And looking at the broad historical perspective, particularly with ideas like the “presumption of constitutionality” that took root in the 1930s, it’s useful in making that comparison. But when discussing particular cases and whether a decision is or is not “activist”, I agree that it’s not of much use at all.

However, I will note that those who use the phrase, particularly on the right, often use rhetoric that sounds much like that definition. How often do we hear the phrase accompanied by rhetoric about “unelected judges” who are “subverting the will of the people” as expressed through their elected representatives? It’s silly rhetoric, of course, because every time a judge strikes down any law this accusation applies, yet everyone wants judges to strike down some laws. So it’s just empty and hypocritically applied rhetoric, yet we hear it constantly when a judge strikes down a law that conservatives like (never when they strike down a law that conservatives don’t like). And that’s really my point overall, that the phrase as used in political debates is almost entirely devoid of meaning. If someone wants me to take seriously the notion of judicial activism, they’re gonna have to come up with a coherent definition and be willing to apply it consistently to cases and accept the outcome even if they don’t like it. And I have yet to see anyone do this or even come close to it.
#21 Patterico
July 8, 2005

“How often do we hear the phrase accompanied by rhetoric about ‘unelected judges’ who are ‘subverting the will of the people’ as expressed through their elected representatives?”

I use similar “rhetoric” quite often and believe in it. But I see the Constitution as the ultimate will of the People. You see it differently: as some embodiment of natural rights that can be determined by an appeal to (your) logic and reason.

Here’s a quiz I’ve been meaning to put to you, as I’ve been reviewing our old debates about majority rule and legitimacy: is there any part of the Constitution that can’t be amended by the normal amendment process?

If your answer is yes, then the next question is obvious: why did the Founders disallow amendment of that/those provision(s), and not other provisions that you seem to believe flow from natural rights and can’t be “legitimately” amended?
#22 Ed Brayton
July 8, 2005

ME: “How often do we hear the phrase accompanied by rhetoric about ‘unelected judges’ who are ‘subverting the will of the people’ as expressed through their elected representatives?”

Patterico: I use similar “rhetoric” quite often and believe in it. But I see the Constitution as the ultimate will of the People. You see it differently: as some embodiment of natural rights that can be determined by an appeal to (your) logic and reason.

Let me make two points here. First, if you’re going to use rhetoric like that, you are obligated (intellectually) to use it every time the Supreme Court strikes down any law. Every time the court strikes down a law, that’s 9 “unelected” judges “subverting the will of the people” as expressed through their representatives. So I’m a bit baffled why you would claim that the NYT article was absurd because it defined judicial activism as the court overturning legislation and then use that same definition yourself.

More importantly, that power was given to those unelected judges quite intentionally for the reasons explained in Federalist 78. Hamilton makes clear that the constitution provides for judges to be appointed rather than elected, and given lifetime appointments outside the reach of the other branches except for the rare instance of impeachment, in order to insure their independence from the ebbs and flows of popular opinion. And that, he says, is crucial to the entire system of a free society:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

So it seems that your complaint is with the very power that the founding fathers gave to the courts. If your complaint is over judges overturning laws passed by the people’s representatives, then your argument is with judicial review itself. But I never hear people complain about judicial review when the law being overturned is one that they dislike or think unconstitutional. The complaints come only when they overturn a law one likes. But if that’s the case, the basis cannot be merely because of unelected judges overturning laws passed by the people’s representatives. So that kind of rhetoric is neither coherent nor consistent, and even less so when it defines “judicial activism”.

Here’s a quiz I’ve been meaning to put to you, as I’ve been reviewing our old debates about majority rule and legitimacy: is there any part of the Constitution that can’t be amended by the normal amendment process?

Not that I’m aware of. But I’m at a loss as to why this matters at all in this discussion.
#23 John
July 8, 2005

I am beginning to think that all this discussion about the proper method to intepret the constitution boils down to a very simple concept from the perspective of the modern social conservative. That concept is that the Constitution was written by and for people like me – white, Christian, straight men.

The due process clause exists so that people like me can decide who to let into my club.
#24 Patterico
July 8, 2005

First, if you’re going to use rhetoric like that, you are obligated (intellectually) to use it every time the Supreme Court strikes down any law.

No, I’m not. Read again what I said above. The Constitution is itself the highest expression of the will of the People. If the Constitution trumps legislation, judges should strike down the legislation — and that action is consistent with the will of the People. Granted, the transitory will of the People must give way to a higher will encompassed in our founding document — but that is the document whose terms that we are assumed to have agreed to abide by. Subjecting a transitory desire on the part of the public to a more firm and lasting declaration of principle embodied in a founding document is not inconsistent with the democratic principles upon which this country was founded.

Not that I’m aware of. But I’m at a loss as to why this matters at all in this discussion.

When I say in the first paragraph of this comment that the Constitution is itself the highest expression of the will of the People, that gets us back to the old discussion — which we never really finished (and might never finish) regarding whether Scalia was correct to say that the whole theory of our country was majority rule. I say he is right; you have argued elsewhere on this blog that he isn’t because our country was founded on a premise of natural rights. My main response to that is that the Founders set up a system by which the Constitution could be amended through a specified process — so if the Founders considered any right inviolate, they would have placed that right beyond the reach of the amendment process.

So my current quiz question to you is: did they, in fact, place any part of the Constitution beyond the Amendment process. And if they did (do you see a trap coming?), does that not show that 1) they knew how to do this; and 2) by implication they provided that any *other* part of the Constitution may be legitimately changed through the Amendment process — even so seemingly fundamental a right as the freedom of speech provided by the First Amendment?
#25 John
July 11, 2005

According to Justice John Dooley of the Vermont Supreme Court, it is all about sex.

http://www.mountainpridemedia.org/oitm/issues/2005/05may2005/news02_dooley.htm
#26 raj
July 12, 2005

Just to let you know, the courts do not “interpret law.” They decide cases between and among litigants. They determine the outcomes of the cases in view of many sources of law: the US constitution, the various state constitutions, the various statutes that have been passed, the “common law” (the legal tradition that dates back to at least the Roman era, if not before. Various international treaties to which the US is a party. And (horror of horrors) what other countries courts from the same legal tradition might have opined on similar issues.

There seems to be a strange belief among some Americans that the American legal tradition began in 1787 It did not. And it did not isolate itself from the legal tradition from which it sprang in 1787.
#27 John
July 12, 2005

Excellent point, raj.

This, to me, illustrates the danger inherent in “strict contructionism” because taking the Constituiton’s text in isolation ignores all the things you mention.
#28 Patterico
July 12, 2005

Just to let you know, the courts do not “interpret law.”

I think it’s quite clear that courts do in fact interpret law, all the time.
#29 Patterico
July 12, 2005

Since you get upset at me in another thread for allegedly failing to respond to the substance of your comment, how’s about taking a stab at answering the questions I put to Ed above?
#30 raj
July 12, 2005

Patterico at July 12, 2005 09:52 AM

Just to let you know, courts decide cases among litigants. That’s the basic meaning of “judicial power.” In deciding cases, the courts derive the law to be applied from a variety of sources: the US constitution, statutes that were passed by the federal constitution, treaties that were ratified by the US government, state constitutions, statutes passed by the various state legislatures, ordinances that were passed by the various town governments that might be relevant. There are a variety of sources of law that courts make use of.

Moreover, given the fact that the US legal tradition is part of a larger legal tradition (“common law”–basically ancient Roman based law, passed to us via the British), US courts also inform their decisions–properly so, in my view–with opinion from other jurisdictions that stem from the same heritage. It isn’t that difficult. The US legal heritage did not spring whole-hog up in 1787, which some people in the US apparently want to believe. Even “judicial review”–the power of the courts to declare legislative or executive actions–wasn’t a new concept with Marbury, as anyone who has read the Federalist papers can attest. Look at FP78, for example. Judicial review was presumed to be a part of “judicial power,” even though it might not have been called that.

Regarding your questions to Ed, your questions were apparently directed to Ed, not to me. What do you want me to respond to?
#31 Patterico
July 12, 2005

You keep saying “just to let you know” as though you were clueing me in on something that I don’t know.

Just to let you know, it sounds arrogant — especially when you keep doing it.

Just to let you know, the courts do indeed “interpret law” all the time when they decide cases between litigants.
#32 raj
July 13, 2005

Patterico at July 12, 2005 10:25 PM

Sorry, I don’t have the slightest idea who you are or what your background is. I don’t mean to sound patronizing when I use the phrase “just to let you know.” It’s taken me a while to figure it out, too. And I’ve been a lawyer for over 30 years.

I don’t have the slightest idea what is meant by “interpret the law.” I am pretty good at interpretting German language texts into American English. But, “just to let you know,” courts decide cases between and among litigants, as I have mentioned. And they use various sources of law in determining how those cases should be decided. What is meant by “interpret the law”? The courts apply the law that they determine should be applicable to a particular case. That is my point, and I stand by it.
#33 Patterico
July 13, 2005

Gotcha. For what it’s worth, I am a lawyer as well. I have clerked for a federal judge, am currently a prosecutor, and have been a lawyer for about 12 years. I have some idea what I’m talking about.

In the context of this discussion, which is primarily about constitutional interpretation, I was just a little surprised to hear someone say that judges don’t interpret the law. In this context, that is their prime function. What is meant by that is to figure out what it means . . . which is what we’re talking about.

My questions, which I pose to anyone still reading this thread, are these ones that I posed earlier:

Did the founders place any part of the Constitution beyond the Amendment process? [Hint: the answer is yes.] And if they did (do you see a trap coming?), does that not show that 1) they knew how to do this; and 2) by implication they provided that any *other* part of the Constitution may be legitimately changed through the Amendment process — even so seemingly fundamental a right as the freedom of speech provided by the First Amendment?
#34 raj
July 13, 2005

Patterico at July 13, 2005 01:59 AM

I am not going to play games with you. If there is a provision of the federal constitution (which you did not cite) which purports not to be subject to amendment, it can easily be amended by removing the limitation. Via amendment, of course. It isn’t rocket science. Amend the constitution to remove the limitation, and then amend the previously protected provision.

I’m also not going to play games with you in regard “interpreting the law.” Judges apply the law in particular cases between or among particular litigants. That is what is meant by “judicial power”" But what is the law that is to be applied? The judges marshall the law from a number of potential sources and try to figure out a result that is consistent with the federal constitution, the federal statutes, the state constitution, the state statutes, the local ordinances, and the common law legal tradition that has been handed down to us by the Greeks, via the Romans, via the Europeans, and via the British legal tradition. There is a rather significant Western legal tradition that informs much of US law, whether or not Americans wish to acknowledge it. Some Americans appear to believe that the US legal tradition sprang up whole hog in 1787, but that’s not the case.

I apologize if I have not made myself clear. I seriously do.
#35 Patterico
July 13, 2005

I think it’s an interesting question whether a document that says “this document may be amended in the following way, except that under no circumstances can anyone change provision x” can be amended to change provision x by first amending the provision that prevents that amendment. I don’t think the answer is as straightforward as you evidently do; I suspect the answer is “no.”

In any event, my question was really what it says about the founders’ intent if they purported to place certain things beyond the People’s ability to amend. Does that not suggest that they believed other parts were, in fact, subject to amendment? I think this is a pretty good refutation of Ed’s natural rights argument. Don’t you?
#36 raj
July 14, 2005

Patterico at July 13, 2005 09:58 PM

It’s an academic argument, since we are long past the period during which those provisions of the the US constition were supposedly not subject to amendment.

Regarding “natural rights,” I’m a bit leary about that because “natural rights” have largely been argued for on “natural law” ground. Natural law, is, of course, a religious concept perpetrated by the Roman Catholic Church.
#37 Patterico
July 16, 2005

It’s an academic argument, since we are long past the period during which those provisions of the the US constition were supposedly not subject to amendment.

Really? Are you sure?
#38 Patterico
July 16, 2005

Is it your contention that, according to the text of the Constitution, we may deprive your state of its equal suffrage in the Senate without its consent?