Jordan Lorence, the ADF attorney who wrote the post on judicial activism that I replied to the other day has responded. He doesn't link to the response or mention me at all, but I assume it's my post he's responding to because my post was titled "ADF's Double Talk on Judicial Activism" and his reply is titled "No Double Talk on Judicial Activism Here". Assuming he sees this post as well, I hope from now on he'll follow the general rules of blog etiquette and post a link to the criticism he's responding to so that readers can actually see both sides rather than having to rely on their representation of the other side's arguments.
The odd thing about his response is that he doesn't really respond to the substance of my argument at all. What he attempts to do is give examples of what he calls "judicial activism", but all he's really doing is giving examples of bad rulings. No one would argue the fact that some rulings are well-reasoned while others are not, but that does not answer the question of why such rulings are being called "activist". Surely someone who argues for sticking to the meaning of the constitutional text will recognize that the term "activist" has a meaning that has to be recognized. The problem, as I've stated before, is that it doesn't mean anything in the actual usage of the phrase.
Keenan Kmiec wrote an excellent law review article in 2004 about the origin and uses of the phrase "judicial activism". He begins by noting, "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." And he is quite right.
Let's take a look at what Lorence says he means by the phrase. First, he says:
Judicial activism occurs when judges strike down a law that no text of the Constitution forbids the lawmakers to enact. My critics argue that I am merely saying that "judicial activism" means "I disagree with the court's decision." The critics say that I and others like me needlessly hurl the slur of "judicial activist" against judges we merely disagree with. I agree that reasonable people can disagree over the interpretation of a constitutional text and how it applies in a certain case.
All this really means is that he calls a ruling "judicial activism" whenever he thinks it was wrongly decided. And as he admits, reasonable people can disagree over whether it was wrongly decided. How, then, is this not an admission that I am correct when I say that the phrase really just means "a ruling I disagree with"? That's how this reads to me.
However, there is such a thing as judges misusing their authority to impose their own public policy predilections on the people by court decrees that have no reasonable textual support in the Constitution. That is what I call, "judicial activism," and it does exist.
The problem is, how do we tell that this is going on? Are there some objective criteria for determining when a judge is "imposing" their own public policy predilections and when they are not? Certainly, Lorence and I could both list examples where we think this is happening, but would we agree? For example, I would list Scalia's opinion in Raich, where he abandons completely any pretense of originalism in order to uphold the supremacy of the Controlled Substances Act over a California referendum allowing medical marijuana use. In doing so, he ignores completely the original meaning of the interstate commerce clause. Yet Scalia is allegedly the poster boy for non-activist judges, a justice who insists that the original public meaning of the constitutional text must be the controlling factor at all times.
Next, Lorence moves on to what he calls "indicators" that a ruling is an activist one.
(1) Judicial activism usually involves an "evolving constitution" so that something that once was constitutional suddenly becomes unconstitutional. Rather than seeing a consistent, settled meaning to the text, many judges believe the Constitution "evolves," and "grows" so that a law a legislature could constitutionally enact one day becomes unconstitutional another day. See for example the question of whether states may impose the death penalty for 17 and 16-year-old murderers. States did so for centuries, and some changed their minds on whether to use this authority or not. The Supreme Court said that such a law did not violate the 8th Amendment in Stanford v. Kentucky, 492 U.S. 361 (1989), but then later said that the Constitution evolved, and now it is unconstitutional in Roper v. Simmons, 543 U.S. 551 (2005) (citing evolving state standards and foreign law, to boot). The reason for such a change, courts frequently say, is that the modern day judge is more morally enlightened than the Supreme Court justices of the past, so the current judgment is "better" than the past judgment. This strikes me as a tad arrogant and not true in many cases.
The case he mentions involves the meaning of the "cruel and unusual punishments" clause. Lorence says that the meaning of that clause, and all clauses of the constitution, must be fixed and immune to evolving over time. But even Justice Scalia has said that if he was faced with a law that allows public floggings as punishment for crimes, he would not vote to uphold such a law. He further said that he did not know any judge who would uphold such a law, yet he admits that according to the original public meaning of the cruel and unusual punishments clause, such laws were clearly constitutional. If even Justice Scalia can so casually jettison the interpretive theory that he has publicly championed for decades in order to avoid results that he considers heinous, perhaps that's a sign that the interpretive theory isn't such a good one in the first place.
(2) Judicial activism frequently involves courts finding a new "right" that lacks any textual basis in the Constitution - The Supreme Court announced a constitutional right to abortion in Roe v. Wade, 410 U.S. 113 (1973), but found that right not in any text of the Constitution (because none existed), but "emanations from the penumbras" (vibes from the shadows) of certain constitutional provisions. The justices used reasoning like, the Third Amendment right against the government quartering troops in your home, and the Fourth Amendment right against unreasonable searches and seizures, create zones of privacy with penumbras emanating from them that protect abortion. One could find a constitutional right to about anything if judges can stretch the Constitution that creatively.
Roe, of course, is the one ruling that the right flogs constantly in this regard, but do they apply this reasoning consistently? No, they do not. As I noted in this post a couple weeks ago, conservatives happily embrace penumbral reasoning when they like the results (and I also agree with all of the results in the cases based on penumbral reasoning listed in that article). There are lots and lots of cases where the Supreme Court has recognized a right not explicitly stated in the Constitution, yet folks like Lorence only complain about them when they don't think people should have said right. The problem is that their rhetoric is rarely aimed at arguing that that specific right isn't justified, but is instead aimed at the mere fact that the court "finding a new right" where no court had previously found one.
For too many conservatives, they want to throw the baby out with the bathwater. Penumbral reasoning is absolutely vital to constitutional interpretation. I would argue that it is virtually mandated by the general nature of the text. You cannot simply look at the original expectation of how the law would be applied, you have to look at the text, the structure and the underlying principles in order to apply general provisions in specific cases and in order to give any meaning to the 9th amendment. The fact that such reasoning may lead to results one doesn't like in some cases should not be a pretext for arguing against penumbral reasoning entirely (especially when there is a huge range of cases that use that type of reasoning that the person claiming to reject penumbral reasoning would wholeheartedly endorse as correct rulings).
(3) Judicial activism sometimes completely ignores past precedent to interpret a constitutional provision in a way no court has ever done before. One notable example of this is the Supreme Court's decision in 1962 declaring unconstitutional Bible reading in public schools. In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court cites no other Supreme Court decision as precedent for its extreme "separation of church and state" view of the Establishment Clause. The high court could not reference any of its other opinions because no such supporting precedent existed. The entire Engel opinion only cites one other Supreme Court opinion, and that is as the source for a comment about a statute passed in the early days of the Republic, not for any constitutional principle it announced. That's it. When you're making new law, the old law doesn't support the "change," so it doesn't get cited.
This is a very odd argument, based upon a factually false premise. Engel v Vitale did not declare Bible reading unconstitutional, it declared mandatory school prayer unconstitutional (see that ruling here). More importantly, notice that he says that judicial activism sometimes means ignoring past precedent to interpret the constitution in a way that no other court had done previously. Why only sometimes? Because sometimes past courts simply got it wrong, often for very long periods of time. In his original post, Lorence cites Plessy as an example of an "activist" (read: bad) ruling that had stood for a long time before properly being overturned by Brown v Board of Education.
So the mere fact that a court rules in a manner inconsistent with the interpretations of prior courts not only is not always an indicator of "judicial activism", sometimes it might even be an indicator that the present court is correcting the "judicial activism" of past courts. And now you begin to see just how malleable these indicators are; they can be a clear indication of judicial activism or they can be the exact opposite, it all depends on whether one agrees with the outcome of the case or not.
Notice also that, despite the fact that he admits that this indicator can mean a ruling is "activist" or can mean that a court is rejecting previous "activist" rulings, he makes no argument at all as to why Engel was wrongly decided. He has declared it an example of judicial activism based solely on the fact that it meets one of his "indicators", but since this indicator could also apply to cases that are not activist (by his own admission), he cannot argue that the ruling is wrong solely because no court had previously ruled that way (of course, it might also be that no court had ever had opportunity to rule that way; I'm not aware of any previous case challenging mandatory prayer in public schools, but perhaps there were some).
So the question is, was Engel wrongly decided? Surely if the Establishment clause has any real meaning at all, it must, at the very least, prevent the government from forcing people to engage in mandatory prayer. As Justice Black's ruling says, no one disputes that prayer is an explicitly religious exercise. If government mandated religious exercises do not violate the establishment clause, then what on earth does? Lorence makes no substantive argument whatsoever on why Engel was not correctly decided. Indeed, the fact that he thinks it was wrongly decided indicates that he thinks that the government has the authority to force people to practice a religion that they do not believe in. Can you imagine anything more contrary to the religion clauses of the first amendment and the principles of liberty than that?
(4) Judicial activism usually entails judges acting like lawmakers rather than judges acting as umpires.
This is an argument I've always found fascinating, especially when made by social conservatives. We hear constant invocations from conservatives against judges "legislating from the bench." But who is probably the single most cited legal authority by conservatives? Blackstone, of course. Conservatives love to cite common law traditions, particularly those that established civil and criminal laws against immorality (adultery, blasphemy, homosexuality, etc). Roy Moore cites the common law almost constantly in arguing that homosexuality should be punishable by imprisonment or death. But the English common law was largely judge-made law, and Blackstone was an enthusiastic support of "judicial legislation". So ironically (and hypocritically), the same people who rail against "legislating from the bench" will turn around 30 seconds later and cite judge-made law from the English common law to justify laws against immorality that they support.
The other issue, of course, is that there is no coherent standard for determining when a judge is "legislating from the bench" and when he's merely interpreting the law. Lorence offers no such criteria, nor does any other advocate against "judicial activism" that I know of. This seems to go back to this notion of judges forcing their policy preferences into the law, but that requires mind-reading in order to know that it's going on. The only answer seems to be "I know it when I see it", but that is entirely too subjective; one is likely to see it only when one disagrees with the results.
Also bear in mind the argument that I made in my previous post, to which Lorence does not reply. He endorses Brown v Board of Education as a necessary corrective to Plessy, which he regards as an "activist" ruling. But if any decision can be fairly called "legislating from the bench", it's Brown. So again we're left with this odd set of confused criteria for judicial activism that are sometimes applied and sometimes not. If a ruling finds a right that no previous court has found, it's being activist....except when it's not. If a court overturns the "will of the people" then it's being activist....except when it's not.
Finally, he concludes:
Judicial activism poses a threat to ordered liberty and government by the people. The people have agreed to a Constitution by a super-majority. Sometimes the people will violate that Constitution with laws passed by a simple majority. Courts can legitimately strike down laws as unconstitutional in those situations. However, judges who step in to correct perceived public policy "errors" made by the people and their lawmakers are usurping legislative authority if they discover new "rights" with no clear roots in the text of the Constitution.
I left a comment after the post I'm responding to, but it's stuck in moderation at this point and has not been put up on the page. I asked a simple question: was Loving v Virginia an activist ruling or not? It fits virtually all of his criteria for one. The court declared a right to marriage that is nowhere stated in the Constitution. In doing so, it disagreed with innumerable previous courts, none of whom had ever recognized such a right. It also overturned anti-miscegenation laws that had existed for centuries, not only in American law but in the English common law as well. Likewise, the ruling was based upon the equal protection clause of the 14th amendment, and the framers of that amendment had explicitly stated that this clause did not invalidate laws against interracial marriages. Thus, the original meaning and original expected application of the text also argues against the ruling. So by the criteria laid our for judicial activism, this ruling must be an activist one. Yet virtually no one will come out and say that. Why? Because the result was so obviously the correct one to any sane human being.
And that is precisely the problem with this phrase. Even if one meets all of the criteria, it still won't be applied consistently but only depending on the result. And that goes back to my original statement: the phrase "judicial activism" really just means a ruling I disagree with.
"There are lots and lots of cases where the Supreme Court has recognized a right not explicitly stated in the Constitution, yet folks like Lorence only complain about them when they don't think people should have said right."
There is another Constitutional basis for enforcing some implicit rights that does not rely on "penumbral" reasoning. As I understand the history of the drafting and ratification of the Constitution and the Bill of Rights, it was very clear to all involved that there were intrinsic human rights that could never be infringed by a legitimate government. In fact, one of the explicit arguments made against enumerating some rights--either in the main text or in the Bill of Rights--was that it would erroneously be interpreted later on as implying that there were no rights other than the ones that were enumerated.
I have always wondered why the Supreme Court has tended to rely much more on complicated penumbral reasoning to find these unenumerated rights, rather than on the argument that there simply are non-enumerated rights, and that these rights need to be found by looking at the history of the common law and the American Revolution.
Woohoo! Ed vs. the political hacks aka lawyers of the ADF!
I'm neither a lawyer nor a devoted student of the law as you are, Ed, but I"ve always viewed our Constitution as a work of genius. As founding documents go, it's simple, short and to the point (most states have constitutions that run far longer than the US. Pennsylvania's runs to more than 80 pages for example) . It doesn't bog down in detailed specifications on how society should operate or function, even in the particulars of how the three branches of the federal government operate. That has left the heirs of the founders the task of interpreting it under circumstances that differ radically from those found in the 1780's and '90's, making it eminently adaptable. It also invites arguments over what is the correct interpretation, but in total I think the benefiits of simplicty far outweigh the drawbacks. I fully expect the Consitution as our guiding document to survive for centuries unless we have more presidents like Bush are hell bent on shredding it for political gain. But so long as presidents respect it and enough citizens challenge them when they don't, we should be in good shape. That's why organizations like the ACLU are so important.
I read Mr. Lorance's post assuming that Ed was condensing the arguments for sake of brevity. He's not: What is quoted is all there is, which amounts to "I'll call it activist when I feel like it."
His criteria are singularly weak when looked at from an historical basis. Apparently activist Courts were with us from almost the beginning. Every major Marshall Court decision meets the critieria, as does Dred Scott, the Slaughterhouse cases, Lockner, and the entire gamut of New Deal cases. The one case he cites as activist from the 19th Century, Plessy, is one of the few that is manifestly NOT an activist decision; although clearly wrong (as shown by the Harlan dissent) it is a perfect capstone for the prior 20 years of cases (besides, how does NOT doing something qualify as "activist?"). Brown, as Ed points out, is one of the most activist cases in history, especially if you see it as directly leading to Mecklenburg Cty.
Let's try for a new definition of "activist," assuming that we have to keep the term in our vocabulary. A decision is activist when it contains a mandate to an entity of government to perform or cease to perform an action contrary to a political decision. That definition is non-ideological, but not terribly useful. But it's better than Mr. Lorance's.
I could not detect any way to comment on Mr. Lorance's post. Is that a closed forum?
You have to join to comment. I joined and commented, but the comment hasn't left moderation yet. I wonder if it will.
One additional bit of irony. The Kmiec article I link to in this post (and that a commenter at the ADF site also quotes) mentions Judge J. Harvie Wilkinson prominently as a judge who has written about judicial activism in court rulings. That's also the same judge that another ADF attorney, Chris Stovall, accused of a "new form of judicial activism" solely because he gave his opinion about a possible constitutional amendment. And that, as I said in my previous post, is yet another reason why "judicial activist" is nothing more than an epithet. If it can be used to label a judge for giving an opinion, not a ruling in a court case, then it's just a general purpose insult that means nothing at all. Here's what the Kmiec article says about Wilkinson:
A 1999 Fourth Circuit concurrence by Chief Judge J. Harvie Wilkinson III adopts and expands upon many of the themes discussed in Turpin. The case, Brzonkala v. Virginia Polytechnic Institute and State University, invalidated a portion of the Violence Against Women Act as exceeding "Congress' [s] power under both the Commerce Clause of Article I, Section 8, and the Enforcement Clause of Section 5 of the Fourteenth Amendment." Judge Wilkinson concurs, admitting that "it is a grave judicial act to nullify a product of the democratic process," but concludes that this case merits such an act.
Judge Wilkinson's concurrence suggests that judicial activism is alive and well in the United States. In the twentieth century, he explains, it "falls into three general stages." The first stage was the Lochner era, "beginning roughly with the decision in Lochner v. New York, and continuing through the early New Deal," which "is still widely disparaged for its mobilization of personal judicial preference in opposition to state and federal social welfare legislation." The second stage took place during the "Warren and Early Burger Courts," roughly the 1950s through the early 1970s, which "focused on finding new substantive rights in the Constitution and down played that document's structural mandates." As Judge Wilkinson sees it, "Although many of its individual decisions were overdue and salutary, when the era is considered as a whole, the states were relegated to a second-class constitutional status." Finally, the third stage of judicial activism "probably began with New York v. United States," and continues into the twenty-first century.
"The common thread of contemporary activism," Judge Wilkinson explains, "is an interest in reviving the structural guarantees of dual sovereignty." The specific examples of this federalism revival are familiar to any observer of the Rehnquist Court, and have generated a great deal of commentary. They include cases limiting Congress's power under the Commerce Clause, cases restricting the ability of one branch of government to "commandeer" the instrumentalities of another, cases cabining Congress's "enforcement power" under section five of the Fourteenth Amendment, and an array of cases expanding or affirming the scope of the Eleventh Amendment.
In Brzonkala and elsewhere, Judge Wilkinson uses this historical analysis of judicial activism to defend the Rehnquist Court's "New *1463 Federalism" cases. He points out that federalism is an important constitutional value, one that had been forgotten during the second stage of judicial activism, where "the doctrine of dual sovereignty had precious little place." He argues that the third stage of judicial activism "is not a plunge off the constitutional cliff," but rather "a modest and necessary corrective," in which the Court approaches cases as "a structural referee, not an ideological combatant." It does not pose any threat to the "binding effect of the Bill of Rights upon the states, or to the constitutional underpinnings of our most basic national civil rights statutes." This analysis of judicial activism as an historical concept is commendable, whether or not one agrees with Wilkinson's ultimate conclusion, because it employs reasoned, civil argument in order to advocate for a position. It invites constructive dialogue about the Rehnquist Court's place in history, and the nature and justification of its "New Federalism" cases.
I am a lawyer, and have litigated against ADF. The depth of their hypocrisy is really unbelievable. They also violate rules of professional conduct (sending out press releases with lies, contacting opposing clients behind opposing counsel's back, failing to produce witnesses for deposition, and refusing to follow through with friendly agreements made between attorneys during litigation). You might also like to know that many of their attorneys come from the insurance defense bar. Nothing says "Christian" like denying someone worker's compensation!
Yeah, and nothing makes "christian attorney" an oxymoron better than the ADF.
And they also think that nothing says "christian" like taking the children away from gay parents in divorce cases.
Isn't this clown representing the ADF's item number 2 in direct contradiction to the tenth amendment?
The 10th amendment basically states that it is the PEOPLE and the STATES to which all rights are reserved, and specifically not the federal government.
I'm not a lawyer, but that is one thing that seems pretty clear. I'm sure there sre some subtleties there, but the simple claim is that these ADF and STACLU etc. types are all about trying to bring about a more and more authoritarian central government.
Sometimes I wish they would get exactly what they wish for....cuz you know it would come back and bite them in the ass.