Everyone seems to oppose judicial activism these days. If you don’t like the role the courts are currently exercising, you find a way to call it “activism” and argue that the change you want would be “restraint.” But if the status quo pleases you, you insist that what the judges are doing is not “activism,” rather, nothing more than what the law requires. Or you concede the existence of activism—but contend that changing things will only unleash a new form of far more virulent activism.ADDED: My point in this piece is that activism/restraint rhetoric is very common and that you need to realize that it's being used by people who probably have substantive preferences. As such, you've got to expect them to warn you about "activism" with respect to outcomes they don't like and characterize things they do like as a way to avoid activism. I refer to Justice Scalia's recent ACLU debate and to Richard Fallon's SLU lecture (which I blogged about here).
AND: My editor says it's okay to reprint the whole text. Here it is:
Wall Street Journal
No Exit
By ANN ALTHOUSE
October 21, 2006; Page A9
Everyone seems to oppose judicial activism these days. If you don't like the role the courts are currently exercising, you find a way to call it "activism" and argue that the change you want would be "restraint." But if the status quo pleases you, you insist that what the judges are doing is not "activism," rather, nothing more than what the law requires. Or you concede the existence of activism -- but contend that changing things will only unleash a new form of far more virulent activism.
There was a time -- not all that long ago -- when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we'd say. Now we all seem to love to wrap ourselves in the mantle of the new fashion. But that fashion comes at the price of candor.
Consider abortion. The Supreme Court has begun its 2006 term, and there are two abortion cases scheduled for argument on Nov. 8. Up for decision this time around: whether the federal Partial Birth Abortion Ban Act violates the Constitution.
Back in 2000, the court struck down a state "partial-birth" abortion statute. In dissent, Justice Antonin Scalia mocked the majority for thinking that judges, by locating abortion rights in the Constitution, could put an end to political conflicts over abortion. The court, he wrote, had only "inflamed our national politics" and blundered into "the abortion-umpiring business." His was a plea to abandon activism: The court ought to overrule Roe v. Wade and let the people fight over abortion in the state political arenas.
Justice Scalia often repeats his plea -- about abortion rights specifically and about judging generally. For example, last Sunday, in a televised debate sponsored by the ACLU, he dutifully professed not to "take any public view on whether it would be good or bad" for government to adopt one regulation or another and to limit his work to figuring out whether or not those things other people want are supported by the Constitution. Do we really believe that?
Two days before Justice Scalia spoke Harvard law professor Richard H. Fallon Jr. gave a lecture at Saint Louis University School of Law in which he speculated about the legal landscape if Justice Scalia got his way. Mr. Fallon declined to disclose his personal preference about whether Roe v. Wade should be overturned. Yet he took great pains to amass an astoundingly complex collection of legal issues that could plague the courts in the post-Roe world. (What if one state attempted to regulate whether its citizens could obtain an abortion in another state? Constitutional?)
Don't be fooled, Mr. Fallon said: The courts will remain embroiled in the abortion-umpiring business, with or without Roe. Bemoan activism all you like, but be forewarned: There's even more of it in the world after Roe.
As one of the panelists, I suggested that Mr. Fallon meant for his project to function as an argument against overturning Roe. He resisted: No, it isn't a question of whether the courts should be restrained or whether individual rights do warrant active judicial protection. It is simply an exercise in thinking through the new problems that would arise post-Roe.
Still, the implications are clear. The Supreme Court once imagined -- wrongly -- that enshrining abortion rights in the Constitution would spare us a torturous political fight. It did not, and the court's initial feat of creativity laid the groundwork for decades of controversial cases and contentious confirmation battles. Nevertheless, it is also a delusion to think that matters would improve if the court rescinded those rights. New political fights would spring up and produce a new set of cases that would plunge the courts into even more troublesome legal disputes. The sought-after exit from "the abortion-umpiring business" would not take place. There is no exit.
That easily translates into the conclusion: Roe v. Wade should not be overturned. But it is an oblique argument that avoids speaking directly about the importance or reality of the rights in question. Instead, the argument appeals to our preferences and aversions about judicial behavior. And it assumes that these days we like our judges restrained. With this assumption, we're reconfiguring arguments into plans for -- or intimations about -- minimizing judicial activism.
We can see the same phenomenon this fall in the debate about state constitutional amendments banning same-sex marriage, which are on the ballot in a number of states, including mine. Supporters of the amendment say that we need it in order to get out in front of judges who might succumb to activism and discover a right to same-sex marriage lurking hitherto unobserved in the state constitution.
In response, opponents of the amendment struggle to convince voters that our state supreme court justices are modest and circumspect, and can be trusted not to short circuit what should be a democratic decision-making process. But opponents have a second move. The proposed Wisconsin amendment bans not only same-sex marriage, but also any "legal status identical or substantially similar to that of marriage." That language is perplexing enough to give substance to their argument that the amendment will perversely drag courts right back into the controversy the amendment's proponents are saying we need to keep them out of.
It is worthwhile to devote some attention to the question of what should be determined by judges and what ought to be left to legislators. But the current fashion of framing substantive issues in terms of activism or restraint can only take you so far -- which isn't very. Those who offer advice about finding the way around judicial activism tend to have substantive preferences that affect which pitfalls they choose to warn you about -- and which ones they don't.
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12 comments:
Or you concede the existence of activism—but contend that changing things will only unleash a new form of far more virulent activism.
So what?
If restoring a decision to it's original Constitutional intent brings about different results and cases, so what? At least we are back on track to the way things should be. That position is not activist.
Those of us opposed to Roe say bring it on.
Ann, in your editorial, you back up your above quote with:
. . . Professor Richard H. Fallon Jr. gave a lecture at Saint Louis University School of Law . . .
Don't be fooled, Mr. Fallon said: The courts will remain embroiled in the abortion-umpiring business, with or without Roe. Bemoan activism all you like, but be forewarned: There's even more of it in the world after Roe.
Again, I'm having a hard time understanding why that would be "activsm"? If Roe were overturned and a thousand cases were brought to settle various issues of state law, why would it be activist if those decisions were decided by reading the Constitution's original intent?
"Activist judges" has always been shorthand to conservatives like me for judges who "look for a predetermined outcome" when they make their decision. That of course is in the eyes of the beholder.
It appears that there is an "activist" effort by many to change the meaning of the phrase "activist judges" from it's original intent.
Wouldn't the WSJ make an exception to let you publish the whole thing on your blog? If not, it seems a little short sighted.
I think the op-ed makes a useful point about the limitations of the phrase "judicial activism." Properly understood, I think judicial activism means judges using their rulings to effect political results beyond what is fairly necessary to decide the case at hand. So Griswold and Roe are activist because they involved the creation of a new set of extra-constitutional rights as a pretext for the authors' policy preferences. By contrast, the many opinions striking portions of the various campaign finance laws are not activist, because those laws clearly had constitutional defects that even many of their proponents recognized (but lacked the political will to correct themselves.)
But the real definition of judicial activism is little understood, and I'm not optimistic that will change. So two cheers for moving away from framing the debate over judges in terms of activism and restraint.
What I find less helpful in the Op-Ed is the failure to distinguish between the burden on the Supreme Court specifically and on the courts generally. It is no argument for keeping Roe that courts will face lots of difficult questions if it is overturned. That's why we have many more courts than legislative bodies.
When Scalia complains about being in the abortion-umpiring business, he is referring to the problem created by the nebulous substantive due process concept. That is what turns every regulation in every state into a battle in the larger war over how much protection does the "right to privacy" entail. The problem isn't that abortion regulations are complicated; it's that every issue is a constitutional issue.
In order to think clearly about the consequences of overruling Roe, I believe we need to appreciate the difference between having a lot of issues decided under state law by state courts and having the entire range of legal issues being forced into the substantive due process framework and decided by the nine Justices.
What is the alternative to interpreting the Constitution based on a modern standard?
I was in the audience last Sunday when Justice Scalia was speaking before the ACLU's National Membership Conference, and he said that he interprets the Constitution based on its meaning back in 1791, at the time of its framing.
Well, does anyone else see a blatant problem with that? How the hell does he know what the answer was back then? Does he conduct a seance? Use a Ouiji board, mayhaps?
And yes, I'm being glib. I'm sure he looks at selective historical writings. I say selective, because back in 1791, they had as many fights over the Constitution as we're having now. Justice Scalia is actually pretty good on First Amendment issues, but if he was really taking a 1791 stance, the First Amendment would be an ink blot on the Constitution. The Federalists and Anti-Federalists were threatening newspapers, locking up editors, and locking up each other! Hell, the first arrest and conviction under the Sedition Act was Congressman "Fighting Matt" Lyons of Vermont.
When there are two or more 1791 views, what does Justice Scalia do? Pick the one that fits the conservative view and call it originalism. Justice Scalia IS a judicial activist, he just keeps it hidden in pretty wrapping paper most of the time.
Another issue with Scalia's method of interpretation is how to handle issues that the framers never considered. If the Constitution is a framework designed for modern interpretation, we're fine, but if we need to look at the original Constitutional intent, the Constitution is not only silent on abortion, it is silent on airplanes. Cars. Cameras. Machine guns. Nuclear weapons. Afterall, an original understanding was that the government could not prevent you from having the weapons of the day-if we do not look at it from a modern standpoint, the 2nd Amendment, as understood by the Framers, meant that I should be allowed to have a nuclear weapon if I can get my hands on one. Cars and airplanes should be treated the same way as horses or walking. And gosh, how on Earth do we handle newer technologies like the internet that don't have a 1791 counterpart?
And my last critique is that Justice Scalia sometimes drops his veil of original intent to nakedly act as a judicial activist. Bush v. Gore is a tired example, but it's an example, but I prefer to look at his opinion last term in Hudson.
Hudson struck down the exclusionary rule in cases where police violated the 4th Amendment by failing to knock, as constitutionally required. One of the main pillars on which Scalia rested his decision, was the notion that police departments have evolved and become more professional in the past 50 years. Wait-let's hold up. First, more professional in the past 50 years? LA's Ramparts scandal and the OJ Simpson debacle, Boston and the Charles Stuart case? Waco? Ruby Ridge? The ongoing civil suits over the sickening police misconduct in Tulsia, Texas? The NYPD shooting an unarmed black man reaching for his wallet or raping a suspect's anus in the station house bathroom with a plunger? There's a whole host of similar examples I could hold up, but the point is made. Second, shifting standards of police professionalism is incompatible with a standard of constitutional interpretation based on the intent of the framers. Why is it wrong to judge death penalty cases on the evolving, shifting standards of decency, but it is OK to give police a blank check to make every search a no-knock raid (violating the intent of the framers and overturning a rule that goes back to the Magna Carta)?
Once again, Conservatives have proven that they are the masters of framing an issue. Activism versus original intent looks good on paper. But it is also a theory that is paper thin.
Edward: My op-ed is not pro-Scalia. It is skeptical of his pronouncements about what he's doing.
Zeb: The FDR appointees most notably turned away from the judicial activism of the Lochner era. If there's one thing anyone who knows anything about judicial history knows, it's that.
I fear the court with liberal activists because of the damage that it has done (Roe for example) and will continue to do to the national fabric.
I am not fearful of a court full of "Scalia's".
Isn't it obvious from other threads that Edward dislikes Scalia for intensely personal reasons?
Ann says that the activism/restraint distinction is more rhetorical than real as a framework to think usefully about the judicial role. True enough, in the same way that the rights/privileges distinction is not often helpful.
As for the "no exit" idea, it's true only in the sense that there will always be difficult cases coming before the SCOTUS where it will undeniably be incumbent on the Court to decide the dispute. And in doing so, the Court will inevitably be deciding and imposing policy matters, "making law" as its detractors often say. The "no exit" idea can go off track, however, where it slides into an expectation that there should be a judicial remedy for every stupid, harsh or unfair law adopted by a legislature. (Ann doesn't take the "no exit" idea that far, and I doubt she would.) Alas, nothing in the federal Constitution provides that legislatures are forbidden to adopt stupid, harsh or unfair measures, or authorizes a federal court to substitute whatever it deems intelligent, mild or fair in its place.
It is very hard to come up with an interpretation of the Constitution that doesn't accept the paramount importance of the political branches in making and framing social policy in the broadest sense. They come first in the constitutional scheme (literally as well as in every other sense). Scalia's jurisprudence is all about accepting that reality, and the corollary consequence that the judiciary has no comparable role. While I don't have any overarching constitutional theory to offer here (and am very skeptical of anything of that sort in any event), I think the majority of cases where courts have overstepped the proper bounds of their authority involve two paradigms: first, a constitutional ruling relying on the Due Process clause, where the case itself is not about a denial of notice, process or an opportunity for a hearing; or, second, a constitutional ruling relying on the Equal Protection clause, where the case doesn't involve the kind of racial classifications that the Civil War amendments were about.
If the SCOTUS would get out of the constitutional adjudication business in those two paradigm classes of cases, I think the great bulk of the problem that Scalia's originalist jurisprudence is meant to combat would cease to exist.
Of course, one consequence of that view is that people would have to come up with another way to rectify stupid, harsh or unfair legislation. On that one, I think Ann's parallel post today, asking whom she should vote for, points the way.
People that don't like Justice Scalia usually have a problem with anti-Italian bias.
Justice Scalia, himself, has alluded to this, and said that he got called epithets like "Dago" and "Wop" etc when he was growing up.
I won't read the Wall Street Journal because it's Pro Illegal-Immigration.
Peace, Maxine
Raymond Kraft has offered an idea to which Ann has alluded. Here's the foundation of the rest of his article: "But there is a Third Way here - and that is for Congress to debate and define, by legislation, the controversial and undefined terms in the Constitution, such as "an establishment of religion." I cannot find or think of any reason why it would not be within the power of Congress to do so, and it would not require an amendment of the Constitution, so long as the legislated definition was consistent with a plausible and reasonable reading of the Constitution. Congress would not remove or change the phrase, "an establishment of religion." It would simply define the phrase - deciding what "an establishment of religion" means - something that the courts have been grappling with for decades. This might be a long and controversial debate in Congress, but it would be a good debate for us to have.
And this would not be unconstitutional, as long as the legislative definition of "an establishment of religion" was consistent with the apparent intent of the First Amendment - which is, obviously, to protect the broadest possible scope of religious freedom, and to prohibit an official or State religion."
Edward apparently likes the notion of an evolving constitution. But he fails to address two of Justice Scalia's points? How does Edward know in what direction the consititution is evolving and why does he think unelected judges are the most qualified to determine what this direction is? If the constitution is evolving, it would seem that the legislature is the most authoritative source to consult for where it's headed.
I suspect that there is a direct correlation between where an evolutionist says the consititution is moving and the deeply held moral and political opinions of the particular social group with whom he socializes.
To me, judicial activism is simply a description of those situations where a judge enacts his own personal agenda under the guise of a judicial decsion. A theory of consitiutional evolution will obviously be very helpful to such a judge. As for the very best example of activist judging, I don't think it is Roe v. Wade. Rather,it's Scott v. Sandford.
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