What is Judicial Activism?

In a July 24 New York Times article, Adam Liptak evaluates the current Supreme Court, saying that the Roberts Court is the most conservative Supreme Court in decades. In light of the court’s radical leftism during the entire Black-Brennan era of 1937-90, that is not saying much.

Liptak next asserts that the current majority’s justices are activist in the manner, though not in the same direction, as their predecessors. What exactly does it mean to call a justice “activist,” and does the label fit here?

Says Liptak, “The Roberts Court is finding laws unconstitutional and reversing precedent—two measures of activism—no more often than earlier courts.” Because “judicial activism” has been a fighting phrase since the 1950s at least, one might infer that finding laws unconstitutional or reversing precedent was dubious behavior. But is it?

Complaints about judicial activism became exceedingly common at the turn of the 20th Century. Then, a corps of conservative justices promiscuously struck down state and federal social and economic legislation that violated the judges’ views concerning good policy. The federal laws almost all violated the 10th Amendment principle that Congress had only constitutionally delegated powers. The state laws, though mostly bad economics, were perfectly constitutional.

Leading campaigners against this right-wing activism included Felix Frankfurter, Harvard Law professor and ACLU mucky-muck. Frankfurter egged on Gov. Franklin Roosevelt of New York against judicial activism. When Roosevelt became President and the court struck down the first group of New Deal laws, talk of judicial activism rose to a din.
But why?

The baseline of constitutional meaning is—must be—the people’s understanding at the time of ratification. Why else would we have a written constitution, after all, than to hold office-holders to an unchanging baseline of behavior?

Frankfurter and Roosevelt did not dislike only that brand of right-wing activism that saw the courts striking down constitutional state laws they disliked. Rather, they branded as activism the same class of decisions that Adam Liptak calls “activist”:  decisions striking down laws or reversing precedent, among others.

When Roosevelt bullied the Supreme Court into changing its attitude toward his legislation, which it had previously rightly ruled unconstitutional, Frankfurter and Liptak see a victory against activism. We might espy, instead, a defeat for constitutional government.

Consider the court’s recent decision in Citizens United v. FEC (2010). President Obama castigated the Roberts Court for doing its duty: striking down an unconstitutional statute. As the post-1937, Frankfurter-Roosevelt dispensation has it, virtually every congressional enactment is presumptively constitutional. So far as the President was concerned, here we had Exhibit A in the case against Roberts Court activism.

But the Federalists told the American people during the constitutional ratification process that federal judges would exercise the power of judicial review—the power to overturn unconstitutional federal laws. In the Virginia Ratification Convention, for example, John Marshall explained at length that federal judges would do this, and their opponents, led by Patrick Henry, said they hoped but doubted that it was true.

In 1819, when the Supreme Court decided the case of McCulloch v. Maryland in favor of a very broad (not to say limitless) view of congressional power under the Necessary and Proper Clause, James Madison protested.  If the people had known that the Constitution would be read that way, he said, they would never have ratified it.

Madison wanted the Supreme Court to strike down unconstitutional laws, and he wanted the court to read Congress’s powers more narrowly than it had decided to do. He did not oppose what Liptak calls “activism.”

In recent decades, complaints about activism have often focused on judicial decisions overturning established precedents. But does that mean that striking down precedents is activism?

In 2008, for example, the Supreme Court for the first time banned capital punishment for child rape. Child rape, reasoned Justice Anthony Kennedy, is not that bad an offense. Therefore, capital punishment would be cruel and unusual.

Here was a perfect specimen of judicial activism. Never had the court said that capital punishment in such cases was precluded by the 8th Amendment.  There is no indication that it was considered “cruel and unusual” in 1791, when the 8th Amendment was ratified. And despite Kennedy’s claim, several states and Congress had recently adopted such laws, which proves that there is no societal consensus even now that such laws are cruel and unusual.

Judicial activism of the type Americans generally dislike is not simply striking down statutes or overturning precedents. Rather, it is judging that ignores the obligation to put the Constitution before one’s own preferences.

If a judge overturns an incorrect precedent, he is not engaged in activism. If he strikes down an unconstitutional statute, he is not engaged in activism.

On the other hand, if a judge decides that Congress needs to exercise powers the Constitution reserves to the states, and then upholds legislation that previous courts have struck down, he is an activist (in the mode of Felix Frankfurter). The same is true if he upholds precedents he knows to be unfounded. Or if—as in the child rape case, or in Roe v. Wade—he strikes down laws simply because he dislikes them.

Someone tell Adam Liptak.