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Judicial activism

By:  Senator Sheldon Whitehouse
National Law Journal

Once again, the first Monday in October has brought another term at the U.S. Supreme Court. And once again, the Court has taken up questions of constitutional and statutory law that deeply affect the lives of all Americans.

As the new term proceeds, it's a useful time to consider "judicial activism," and what this charge means. For years, we've heard about liberal judicial activism, a term leveled by conservatives so repeatedly that it is now in the common parlance, but without any clear meaning. For some, "judicial activism" applies to any decision that fails to meet conservative political purposes, but never to a decision that meets conservative goals, no matter how many acts of Congress it strikes down, how many prior decisions it overturns or how recklessly it strains to decide broad questions of constitutional law.

Views on the propriety of judicial activism can differ. If Brown v. Board of Education was judicial activism, it was judicial activism of a kind that was very good for America. But at a minimum we can be a bit more impartial — and less hypocritical — in identifying judicial activism when it occurs. So let's be analytical and consider what objective measures might allow us to recognize judicial activism. What red flags might signal the presence of judicial activism?

First, an activist court would be less likely to respect the judgments of the American people as expressed through state and federal legislation. The Consti­tution makes clear that policymaking is the province of Congress and state legislatures, not the courts. An activist court is unlikely to appreciate this division of responsibilities. Rather, it would seek to substitute its policy preferences for the decisions of state and federal legislative bodies, even though this may short-circuit the democratic process, impinging the power of the people to govern themselves through their chosen representatives. So a record of frequently overturning legislation would be one likely red flag.

Second, an activist court would chafe at unwelcome prior precedents of the court. The doctrine of stare decisis never has meant that a decision cannot be questioned or overturned, but a long tradition has made clear that the Supreme Court should overturn cases only rarely, and not simply because the current justices might wish to decide the case differently. An activist court would likely find ways to eliminate the precedents with which it disagrees. Thus a cascade of toppled precedents would be a red flag.

Third, an activist court, facing the perennial choice between securing a broad consensus and allowing a bare majority to carry the day, would go down the path that allowed it to reach farther in the ideologically satisfactory direction. As a result, an activist court would likely render 5-4 decisions rather than strive to find broader common ground across the court. (For example, the activist Court of the Lochner v. New York (1905) era was famous for 5-4 decisions articulating a radical vision of substantive due process that shielded corporations from child labor laws and other employee protections.) A parade of 5-4 decisions, particularly on major issues, could be another red flag.

Fourth, a discernible pattern of results would likely emerge: Whether conservative or liberal, an activist court would issue decisions consistent with its ideological preferences. If the pattern were telling, the results would be less likely to be a coincidence, and that would be a red flag.

Fifth, an activist court might be prepared to violate rules and tenets of appellate decision-making that have long guided courts of final appeal. (Our Supreme Court is the institution under our Constitution that most must police itself.) Established principles of judicial self-restraint include avoiding constitutional questions whenever possible; avoiding questions or arguments not presented by the parties or issues not considered by lower courts; not engaging in fact-finding (the province of lower courts); and hewing closely to the facts of the case rather than trafficking in abstractions. These restraints would not recommend themselves to an activist court eager to maneuver its ideological preferences into the law, so violations would be another red flag.

ALL FIVE FLAGS

While none would be dispositive, these all appear to be objective red flags that could signal judicial activism. Sadly, the current Supreme Court's conservative wing has been flying each of these flags.

First, the conservative bloc has failed to respect the legislative process provided for by the Constitution. Whether by ignoring the intent of Congress in employment discrimination cases, imposing business-friendly rules in environmental cases or overturning campaign finance reform statutes (after discarding voluminous congressional findings that established their vital importance), the conservative bloc has readily substituted its policy views for those of democratically elected officials.

Second, the Court's conservative bloc has shown little respect for precedent, whether long-standing or recent, with some decisions reversed for no apparent reason other than a change in the composition of the Court. Thus, for example, Justice John Paul Stevens was driven to write in dissent of the Court's decision to strike down a school integration plan: "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." And he likewise explained in his Citizens United dissent that "the only relevant thing that ha[d] changed since Austin and McConnell," cases that the majority respectively overruled in whole and in part, was "the composition of [the] Court."

Third, the current conservative bloc on the Supreme Court has repeatedly issued 5-4 decisions that dramatically altered the legal landscape. Whether identifying a federal individual right to possess firearms (a right that previously had gone unnoticed by the Court for 220 years) and then applying it to the states, gutting campaign finance laws, weakening protections against employment discrimination or impeding local governments' efforts to ensure racially diverse classrooms, the conservative bloc has reached for the farthest result by the slimmest possible 5-4 majority, rather than seeking a broader consensus. As Justice Stephen Breyer said, reading from his dissent on school integration, and as could be said in many areas, "[i]t's not often in the law that so few have so quickly changed so much."

Fourth, clearly discernible patterns have emerged from the decisions of the conservative bloc of the Supreme Court. Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues. Simply put, the conservative bloc has established a record that has a distinctive pattern — and, at this stage, it is improbable that it would be coincidence. As Jeff Toobin noted in The New Yorker in May 2009, the leader of this bloc, Chief Justice John Roberts Jr., "has served the interests, and reflected the values, of the contemporary Republican Party."

Fifth, the conservative bloc has selectively ignored the rules of restraint that govern appellate decision-making. Consider just one example, against the backdrop of the statement in Austin v. Michigan Chamber of Commerce that unlimited corporate expenditures are "a type of corruption in the political arena." The 5-4 decision in Citizens United stated — as a fact — that "independent expenditures [during elections], including those made by corporations, do not give rise to corruption or to the appearance of corruption." This finding of fact was (a) an essential rhetorical fulcrum for the Citizens United result; (b) incorrect, baseless and contrary to an exhaustive congressional record (not to mention contrary to the experience of anyone who has participated in an election); and (c) inappropriate for a Supreme Court. Worse, to get to this erroneous finding of fact, the Court had to reach a question not before it (so it had no record on that issue), allowing it to ignore the abundant record on this "type of corruption in the political arena" that Congress had developed on a bipartisan basis. Principles of restraint fell left and right.

Finally, Roberts announced in his concurring opinion in Citizens United a theory that, if a precedent is "hotly contested," it has lesser precedential value and can be replaced. This doctrine would allow a determined group of judicial sappers to selectively undermine and then topple ramparts of precedent with which they disagreed — simply on the basis of their willingness persistently to "hotly contest" those precedents they dislike.

"Judicial activism" is often in the eye of the beholder. If, as I have suggested here, we can identify red flags for judicial activism, the conservative bloc on the current Supreme Court is flying all of those flags. Let's hope that this term sees a renewal of the best traditions of the Court, not merely the imposition on our Republic of the ideological or political will of a determined, but bare, majority of the justices.