Oregon State Bar Bulletin — JULY 2010

Everyone hates “judicial activism.” It is the ultimate judicial put-down. It is what every judicial candidate disclaims and every politician scorns. It is the darling of conservative critics of the courts, who regard judicial activists who “legislate from the bench” as the principal villains on the current political stage. But it is frequently the complaint of liberal critics of the courts as well, particularly critics of recent United States Supreme Court decisions.

To hear some of the most outspoken critics, judicial activism threatens the very survival of the world as we know it. Consider the appearance of books like Mark Levin’s Men in Black: How the Supreme Court is Destroying America, a title that pretty much says it all. Or televangelist Pat Robertson’s book Courting Disaster, in which he contends that “an out-of-control judiciary is the single greatest threat to democracy and the religious and moral foundations of America.” No wonder no one wants to be called a judicial activist.

The problem is, no one actually says what he or she means by judicial activism.

The term actually is of surprisingly recent vintage. Scholars agree that the term first appeared in a 1947 Forbes magazine article authored by renowned historian Arthur Schlesinger. Nestled in between advertisements for scotch and aftershave, the article assessed the work of the United States Supreme Court over the previous 10 years — since the famous 1937 “switch in time” decision that, conventional wisdom has it, spelled the end of the Lochner era, during which the Supreme Court repeatedly invalidated social and economic legislation on the ground that it violated constitutional property rights and principles of liberty of contract. During those 10 years, President Rooseveit had appointed seven new justices. Schlesinger wrote to assess the impact of those appointments.

Schlesinger grouped the justices into two camps, which he denominated “judicial activists” and “champions of self restraint.” He assigned four justices — Black, Douglas, Rutledge and Murphy — to the activist group. And he assigned three justices — Frankfurter, Burton and Jackson — to the champions of self-restraint. (Two remaining justices, Chief Justice Vinson and Reed, were not assigned to either of the two groups.) Schlesinger described the judicial activists as associated with the legal realist school of jurisprudence that “was particularly dominant at the Yale Law School.” Schlesinger characterized legal realism as “cynical about an objective judiciary” and as more interested in politically favorable results than legal doctrine. (No question about which camp Schlesinger, a Harvard man, favored.)

Schlesinger never described how it was that he assigned the individual justices to each of the two camps. And, in the years since, he has been roundly criticized for his groupings. But the important point for my purpose is that the label judicial activist stuck, as did its clearly pejorative connotation.

Beginning in the Warren Court era and continuing into the 1970s, conservative commentators and scholars complained that the Court was acting to promote an activist agenda. Cases such as Griswold v. Connecticut, Miranda v. Arizona, Gideon v. Wainwright, Loving v. Virginia and (perhaps more than any other) Roe v. Wade were excoriated as examples of judicial activism run amok.

Meanwhile, the Warren Court gave way to the increasingly conservative Burger, Rehnquist and Roberts Courts, and the tables turned. Cases such as United States v. Lopez, Bush v. Gore and Citizens United v. Federal Elections Commission have had liberals screaming about the conservative judicial activism of the Supreme Court.

Then again, when President Obama referred to a judicial nominee’s “empathy” as a relevant consideration in making appointments to the Supreme Court, it was the conservatives who railed at the implicit plan to pack the Court with activists. More recently, the president’s nomination of Solicitor General Elena Kagan has prompted conservative court watchers such as Judicial Watch to complain of the nominee as a “committed liberal judicial activist.”

What exactly is this judicial activism that has liberals and conservatives alike so up in arms? It is common for critics to complain that judicial activism occurs when judges subvert the law to promote their own political agendas. As Karl Rove complained in a Wall Street Journal opinion piece following the nomination of Justice Sonia Sotomayor, judicial activists “treat … the Constitution as malleable clay to be kneaded and molded in whatever form the judges want.” But what does that really mean? How do we know when judges are “molding” the Constitution instead of merely enforcing it? It turns out to be exasperatingly difficult to pin down.

In my review of the literature, the term judicial activist is employed to describe an improper use of judicial power, most commonly in one of three distinct ways: (Some scholars report as many as five or six different uses of the term, but the three I describe are certainly the most frequently employed.) First, it is used to describe cases in which the courts invalidate legislation. Second, it is used to complain about cases in which the courts fail to follow — or sometimes, overrule — their own precedents. And third, it is used to describe cases in which courts “legislate from the bench.”

Let’s talk about each of those three one at a time, beginning with the type of judicial activism that entails courts invalidating statutes. This is probably the most common use of the term. The underlying basis of the complaint is straightforward. It is that judges — particularly when they are unelected federal judges — subvert the democratic process when they invalidate laws that have been enacted either by the people through the initiative process or by their duly elected representatives in the legislature.

The complaint is routinely leveled by both liberals and conservatives. The website Conservapedia.com, for instance, complains that judges engage in judicial activism when they “unilaterally overrule the will of the people” by invalidating statutes on constitutional grounds. On the other hand, liberal scholar and University of California-Irvine law school dean Erwin Chemerinsky decries the Supreme Court’s recent decision in Citizens United v. Federal Election Commission to invalidate campaign finance regulation because, among other things, the Court failed to defer to the judgment of Congress.

Not surprisingly, examples of this form of so-called judicial activism can easily be found being practiced at all points on the political spectrum. In Lawrence v. Texas, the Supreme Court invalidated on due process grounds statutes criminalizing consensual adult homosexual activity, leaving conservative members of the court to decry the judicial activism of the majority. At the same time, in Heller v. District of Columbia, the Supreme Court invalidated on Second Amendment grounds a District of Columbia ordinance limiting the possession of handguns, leaving liberal members to complain about the same thing.

The problem here is with the definition of judicial activism. In a word, it’s silly. No one really believes that a judge is an activist merely because he or she votes to invalidate a statute. If a judge votes to strike down a law because it violates a constitution, that is not judicial activism. It’s judging.

If, for example, Congress were to pass a law that imposed different criminal sentences depending on the color of the skin of the defendant, I think I am fairly safe in assuming that everyone would expect a court to declare the statute unconstitutional. In our system of government, at least since Marbury v. Madison, it is the job of the courts to tell state and federal legislatures when they overstep their constitutional authority. What else does it mean when we ask judges to swear an oath to uphold and defend the Constitution?

The question is not whether judges should invalidate statutes. The question is when it is appropriate for them to do so. The complaint that judges are judicial activists merely because they invalidate statutes, in other words, is nonsense. At bottom, the real complaint is that a court was wrong in invalidating a particular statute in a particular case.

Let’s turn to the second definition of judicial activism, namely, courts failing to follow their own precedents. It is an article of faith in the law that courts are bound by the rule of stare decisis, that is, by their prior decisions. This is born of a deeply rooted tradition in our legal system that values equality before the law and a similarly deeply rooted concern that the law provides stable, predictable rules of conduct.

Sometimes, however, notwithstanding the principle of stare decisis, courts overrule those precedents. And when they do so, the common complaint is that they are engaging in judicial activism. The complaint is not limited to any political viewpoint, by the way. In Lawrence v. Texas, the Court declared unconstitutional a state statute criminalizing private, consensual homosexual conduct and, in the process, overruled Bowers v. Hardwick, a 20-year-old case to the contrary. Justice Scalia dissented, railing against the majority’s disregard for precedent and at the liberal majority’s apparent acquiescence to the social agenda of homosexual activists. But in Citizens United v. Federal Election Commission, the Court — Justice Scalia included — voted to invalidate a statute that limited corporate campaign expenditures on First Amendment grounds and, in the process, overruled Austin v. Michigan Chamber of Commerce, a 20-year-old case to the contrary. This time it was the relatively more liberal Justice Stevens who dissented, railing against the more conservative majority’s disregard for precedent for no other apparent reason than the fact that the composition of the Court had changed.

Once again, the problem lies in the definition of judicial activism — in this instance, as any case in which a court overrules its own precedents. The fact of the matter is that, although stare decisis is a foundational principle of our legal system, so also is the ability of courts to correct their own past mistakes. Courts are not perfect. Sometimes, they make decisions that later research proves to be incorrect or that later experience shows to be unworkable. Think Brown v. Board of Education, which overruled the separate-but-equal doctrine that had been sanctioned in Plessy v. Ferguson. No one wants a legal system in which courts cannot correct their own mistakes and set the law aright. The only question is when it is appropriate for courts to do so. The mere fact that a court overrules itself is hardly a legitimate basis for complaining that the court is activist.

The third and final definition of judicial activism is one that accuses judges of “legislating from the bench.” This is an especially difficult conception to pin down, but it seems most often to be directed at judicial decisions that cannot be rooted in the express wording of the Constitution.

Conservatives frequently complain about court decisions that recognize individual rights that are not explicitly mentioned in the Constitution. Alabama Sen. Jeff Sessions, for instance, recently complained in hearings on the nomination of Berkeley law professor Goodwin Liu to the Court of Appeals for the 9th Circuit that Liu represents “the very vanguard” of “intellectual judicial activism” because, among other things, he would look to the Constitution and “find rights that there have never been found before.” For such conservatives, the most odious example of this sort of judicial activism is Roe v. Wade, which recognized for the first time a constitutional right to obtain an abortion, based not on the expression of such a right in the text of the Constitution, but on the notion that a right to privacy is implicit in or presupposed by other, express provisions. Conservative critics point out that the Constitution says nothing about a right to obtain an abortion and contend that Roe v. Wade is an example of judges interposing their own views of what the law should be, rather than adhering to the language of the Constitution as it is written.

Liberals level a similar complaint at conservative decisions that recognize state rights that cannot be squared with the express wording of the Constitution. Consider for example, a series of cases in which the Court struck down, on 11th Amendment “sovereign immunity” grounds, federal statutes in which Congress authorized citizens to enforce those statutes in federal court against their own states. The 11th Amendment, by its terms, prohibits suits commenced “against one of the United States by Citizens of another State.” The plain text of the amendment actually says nothing about the sovereign immunity of the states generally and, further, does not prohibit citizens from suing their own states. Nevertheless, in Kimel v. Florida Board of Regents and Board of Trustees of Alabama v. Garrett, the Supreme Court concluded, “this court has long understood the Eleventh Amendment to stand not so much for what it says but for the presupposition . . . which it confirms.” The dissenting justices decried the “judicial activism” of the majorities in enforcing a sweeping conception of federalism that simply cannot be found in the text of the Constitution.

There are several problems with this “legislating-from-the-bench” type of judicial activism complaint. To begin with, constitutional law has never been as simple as mechanically reading the words of the founding document. The courts have long — and by “long” I mean hundreds of years — recognized constitutional principles that are implicit in the structure of the Constitution but not expressed in its actual wording. The constitutional principle of separation of powers, for instance, is nowhere expressly stated in the terms of the United States Constitution (as it is, by way of contrast, in the Oregon Constitution). Yet I am aware of no one — conservative or liberal — who objects to the legitimacy of the separation of powers as a constitutional doctrine.

In a related vein, the fact is that the Constitution includes provisions that are exasperatingly vague. As former Justice David Souter remarked in a recent speech at Harvard University: “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.”

Finally, it bears remembering that the Constitution itself makes clear that just because a right is not mentioned in its text does not mean that the right does not exist. The 9th Amendment plainly declares that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage other (rights) retained by the people.”

Understand that I am not suggesting that Roe v Wade, Kimel v. Board of Regents, Board of Trustees of Alabama v. Garrett, or any other cases in which rights or constitutional principles are recognized that aren’t explicitly mentioned in the text of the Constitution, were rightly or wrongly decided. The question of when the Constitution protects certain rights that are not explicitly mentioned is the subject of fair debate and honest disagreement. And a court decision may be correct or incorrect in recognizing such a right in a given case. My point is that a court, whether right or wrong, is not legislating from the bench merely because it recognizes a right or principle that can’t be found in the explicit wording of the Constitution.

The upshot of all this is that there just doesn’t seem to be much substance to the assertion that a given judicial decision amounts to judicial activism. The term seems to get used in at least three different senses, but, in each case, it turns out to amount to nothing more than an assertion that the decision represents an illegitimate exercise of judicial power because, well, because it is wrong.

I find that very troubling, for despite the fact that the insult has little content, its use is on the rise. I am especially concerned about continued complaints about judicial activism because they are often proffered as thinly veiled — or, in some cases, not veiled at all — threats to the independence of our courts. Consider, for example, proposals in Congress for the impeachment of federal judges whose offense was having “legislated from the bench.” The purpose of such calls, as former House Majority Leader Tom DeLay candidly explained, is that “the judges need to be intimidated.”

I am not saying that our courts are above criticism. Responsible criticism is appropriate and helpful. The fact is that recent judicial decisions do raise serious questions about the proper use of judicial power — questions, for example, about the appropriate method of constitutional interpretation (Textualism? Originalism? Pragmatism?), or about when it is appropriate to defer to legislative policy choices (Always? In cases involving hotly debated issues of social policy? Only when individual liberties are involved? Only when economic regulation is involved?).

But these are hard questions, ones that necessitate careful thought and consideration of nuanced arguments about the proper role of our courts in our system of government. Unfortunately, it seems that politicians and pundits (and, in some cases, dissenting judges) have no patience for difficulty, care or nuance. It is a lot easier to simply lob the rhetorical grenade that a decision with which someone disagrees is an exercise in judicial activism.

My suggestion is that we either eliminate judicial activism from our vocabulary about decisions of the courts or specify precisely what is meant by the term. Either way, it is clear that to complain that a decision is illegitimate because the court overturned a statute, or overruled a prior case, or recognized a right that is not explicitly mentioned in the Constitution — the usual uses of the insult — is simply not enough. Complaining about judicial activism on those familiar grounds is nothing more than an epithet, the verbal equivalent of a can of spray paint wielded by those who are unwilling or unable to engage in the rigorous and responsible discourse of citizenship. We can do better than that.

Jack Landau is an Oregon Court of Appeals judge, an adjunct professor of law at Willamette University College of Law and, he notes, “absolutely never, ever a judicial activist.” He was recently elected to the Oregon Supreme Court and will assume that seat in January 2011.

© 2010 Jack Landau

return to top
return to Table of Contents