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March|April 2003
A HAND IN THE MATTER By Cass R. Sunstein
Upholding the Law By Orin S. Kerr
Catch-21 By Nell Bernstein

Upholding the Law

We aren't living in an age of activism. Critics hype a few controversial decisions, but miss the Rehnquist Court's pattern of restraint.

By Orin S. Kerr

A DECADE AGO, THE PUBLIC DEBATE OVER THE PROPER ROLE of the courts had settled into a familiar pattern. Liberals extolled using the courts as agents of social change. Conservatives objected, insisting that courts should interpret the law, not make it. To conservatives, using the courts for political change was "judicial activism." Conversely, concerns about activism were rarely taken seriously among progressives.

Times have changed, it seems. Today charges of judicial activism come as often from liberals targeting conservatives as vice versa. Accusations that conservatives on the Rehnquist Court are the real judicial activists have become commonplace. What should we make of this shift in attitudes? Are conservatives the new activists? Or is judicial activism just a label without any deeper significance? I believe that judicial activism does have meaning, and the broader debate it suggests has tremendous importance. I also believe that judges from both sides of the political spectrum have been guilty of activism, but accusations against the Rehnquist Court often overstate the case considerably.

Let's start with a definition. What is judicial activism? It begins with an attitude: a confidence in judicial solutions to legal problems and relative scorn toward the handiwork of the executive and legislative branches. Among the three branches of government, the thinking goes, courts should run the show. Judges should use the law as a tool to craft new and creative solutions to legal problems.

The activist attitude manifests itself in two major ways. Perhaps the most powerful form of judicial activism is what you might call separation-of-powers activism: judicial decision making that takes away the power to create governing rules from the executive or legislative branches and gives that power to the courts. Critics sometimes describe this as "legislating from the bench." The basic idea is that a court usurps the authority that traditionally has belonged to another branch and assigns the task of creating substantive rules to itself.

Miranda v. Arizona provides an example. Before Miranda, the rules governing custodial interrogation of suspects in criminal cases were left primarily to the police and state legislatures. In Miranda, the Supreme Court created and imposed a new procedure for interrogating suspects in custody, introducing the famous "right to remain silent" speech. The court's decision expanded the lawmaking power of the courts at the expense of the lawmaking power of the other branches of government.

My notion of separation-of-powers activism is different from Cass Sunstein's definition of activism as judicial invalidation. Although his essay advancing that definition is characteristically thoughtful, equating activism with a court's judgment that a law is unconstitutional seems unhelpful to me. It enables activism to be objectively measured, but does not provide a sufficient standard by which to evaluate it.

A second manifestation of the activist impulse could be called precedent activism: judicial decision making that changes a prior judicial rule or announces a creative interpretation of a statute, usually rejecting a rule that the judges dislike as a policy matter in favor of one they prefer. For example, a court might decide to overrule a longstanding line of precedents, rejecting one established rule for another, and be accused by a dissenting judge of judicial activism for changing the law. The gist of the accusation is that the judges' rule preference has trumped the existing law.

IT TURNS OUT TO BE MUCH EASIER TO DESCRIBE ACTIVISM in theory than to identify it in practice. This is true for two reasons. First, reasonable people can disagree on many legal questions. Law is not like mathematics: It is an inexact science. Our experiences, biases, and policy preferences can color our views at the margins. Also, different people have different views about the right way to interpret the constitution and other laws. As a result, activism as I have defined it may seem illegitimate to one judge but mandated by the proper reading of the Constitution to another.

Second, the different types of activism can conflict with each other. For example, imagine that the Supreme Court decided to overrule Miranda and replace it with the preexisting Fifth Amendment rule that gave legislatures broad authority to craft police interrogation practices (an invitation the court declined in the 2000 Dickerson case). This would be an example of precedent activism but not separation-of-powers activism. The decision would change the existing rule, but decrease the judicial role rather than increase it. Would such a decision stand as an example of judicial activism? In the precedent sense yes, in the separation-of-powers sense no.

Despite these caveats, we can identify an activist impulse in some judicial decisions and can often find a qualitative difference between more activist approaches and other approaches based more on judicial restraint. Some judges adhere carefully to existing precedents; others feel less confined and decide cases accordingly. (If you're still unconvinced, try this experiment: Pick up a Federal Reporter from the 1970s and compare an opinion by Henry Friendly of the federal appeals court in New York with a decision by Skelly Wright of the court in Washington, D.C. In all likelihood, the former will absorb the existing law and carefully apply it; the latter will be more likely to ignore precedents and create new law. That's roughly the difference I have in mind.) Few judges are consistently activist; most follow law dutifully in most cases. But many judges have particular areas in which they tend to stretch the law here or there.

What's the harm of judicial activism? Why does any of this matter? It matters because we live in a democracy, and our democracy generally functions best if the political branches have the power to create the rules we want. As citizens, we have power over the elected branches; they work for us. If we want the government to pass a particular law, we can urge the elected branches to vote for it. If we don't like a senator or a president, we can vote him out and replace him with someone else who will respond better to our wishes.

We have no such power over judges, however. For the most part, once a federal judge takes office, we're stuck with him or her for life. This isn't so bad if the judge respects stare decisis, sticks to existing law, and approaches the job with humility and restraint. However, a judge with a grand sense of the judicial power may start to roam into disputes best left to the political branches. Of course, it's natural for us to celebrate judicial decisions that impose rules we favor and to disparage those that create rules we dislike. But even when we like the rules that judges impose, the judicial imposition comes at a cost. The more the courts roam, the less power the elected branches retain. And the less power the elected branches retain, the less ability we have to control the rules through what Learned Hand called the "common venture" of voting at the polls.

NOW LET'S TURN TO POLITICS, OR AT LEAST THE POLITICAL spectrum. Who are the activists? Are they liberals or conservatives?

The historical answer is both. In the Lochner v. New York era a century ago, conservative justices regularly struck down newly-enacted progressive legislation. Conservatives used the vague text of the due process clause to invalidate legislation regulating the workplace, such as minimum-wage laws and other business regulations. In the Warren Court era of the 1950s and '60s, the sides switched. This time around, liberal justices voted to invalidate a wide range of longstanding laws and practices in fields such as criminal procedure, voting rights, and the relationship between church and state. Judicial activism gained favor among liberals, and judicial restraint shifted from a liberal position to a conservative one.

What explains the shift? Clearly the politics of the judiciary explains a great deal. A century ago, the federal judiciary was on average more conservative than the voting public; 35 years ago, it was on average more liberal. When the politics of the judges differs significantly from the politics of the public, judges can be tempted to exercise their powers broadly. Judicial power can help bring about rules that the judges prefer. Concerns about trumping the political process may seem less important than creating enlightened rules and results. When given this opportunity, judges both liberal and conservative have sometimes found it hard to resist.
So how does the current Supreme Court fit into this pattern? Is the current court an activist court? These are complicated questions, made more difficult by our lack of a historical perspective on the issue. The passage of time provides context, letting us view a court's work more clearly. When evaluating recent decisions it's tempting to pin the activism label on any decision we don't like.

Despite this, I think it is fairly clear that under my definition of activism, the current court is not activist on the scale of either the Lochner Court or the Warren Court. Consider the role of the Supreme Court in those eras. The Lochner Court battled the progressive reforms, constitutionalizing pro-business regulation. The Warren and Burger Courts rewrote and constitutionalized fields such as criminal procedure, voting rights, obscenity, the death penalty, and abortion. In both periods, the Supreme Court played a major role in several of the most significant political debates of the day. The court created new rules that often eclipsed legislative and executive action, engaging in both separation-of-powers activism and precedent activism.

In contrast, the current court generally has carved out a narrower role for itself. The court accepts only about 80 cases a year, roughly half the caseload of the Warren Court. Most of those cases involve narrow questions of law. Today's court usually considers how to interpret and apply existing precedents, rather than whether to reject existing law and start afresh. The court still plays an important role, of course, but that role is defined largely by established precedents. Plus, with a few notable exceptions, the court's decisions have tended to involve fairly arcane legal questions more than major political disputes. Of course, you can agree or disagree with individual decisions. But on the whole, the current Supreme Court has engaged in less precedent activism and separation-of-powers activism than the Warren Court or the Lochner Court.

CONSIDER UNITED STATES V. LOPEZ, THE 1995 COMMERCE CLAUSE decision invalidating a federal law that made it a crime to possess a gun in a school zone. Lopez is sometimes offered as an example of the Rehnquist Court's conservative activism. The five justices in the majority concluded that the law banning possession of a gun near a school was not a regulation of "Commerce . . . among the several states," and therefore exceeded Congress's power. Notably, the decision did not demonstrate precedent activism: It did not overrule any prior cases. Nor did the opinion appear to be driven by the justices' substantive views about possessing guns in school zones. The decision hardly revealed separation-of-powers activism, either: It did not block all legislative regulation of guns in school zones and did not interfere with a political movement seeking the regulation of guns in school zones.

In fact, Lopez resulted in very little change in substantive law. In addition to leaving state legislatures free to regulate guns in school zones, the decision indicated that Congress could do the same, as long as its regulations were restricted to guns that have traveled in or otherwise affected interstate commerce. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute. Because nearly every gun has traveled in or affected interstate commerce, the law of possessing guns in school zones is essentially the same today as it was pre-Lopez. Of course, this doesn't necessarily mean that Lopez was correctly decided. But it does make the decision a weak target for complaints about judicial activism.

Nonetheless, accusations that today's conservative justices are as activist as the Warren Court's liberals remain common. Proponents of this view often note that the Supreme Court has invalidated at least parts of over 26 acts of Congress in the last few years, a much higher rate than in the past. According to these critics, this pattern helps show that the Rehnquist Court's right-wing justices are today's true judicial activists.

While I agree that the conservative justices have not consistently embraced judicial restraint, this argument nonetheless strikes me as weak. First, using judicial invalidation as a proxy for activism suffers from an obvious flaw: If a legislature passes a plainly unconstitutional law, striking down the statute by applying established precedents reflects neither separation-of-powers activism nor precedent activism. (Cass Sunstein cures this problem by actually defining judicial activism as the act of invalidation, but, as noted earlier, I don't find this definition otherwise helpful.)

Consider the Dickerson case that upheld Miranda. The Supreme Court's decision not to overrule Miranda required it to strike down a 1968 federal law Congress had passed to thumb its nose at the Warren Court. It's hard to see Dickerson as an activist decision: The court adhered to precedent and confirmed that a law long thought to be unconstitutional was in fact invalid. However, critics include Dickerson in the list of cases that are supposed to prove the court's conservative activism.

Similarly, the focus on decisions striking down federal laws unfairly stacks the deck against the Rehnquist Court. The Warren Court's reform efforts focused primarily on invalidating state and local laws, rather than federal laws. Indeed, the Warren Court generally tried to expand the scope of federal laws such as Section 1983 and other federal civil rights laws. As a result, using judicial invalidation of federal laws as a quantitative measure of activism seems particularly unhelpful. Perhaps the more relevant quantitative measure would compare how often the Rehnquist Court and Warren Court have struck down legislative acts as a whole, or, better yet, how often they have overruled precedents. I suspect it would reveal a very different picture.

IT'S ALSO A MISTAKE TO ASSUME THAT EVERY REHNQUIST Court decision striking down a legislative act features the conservative justices acting over the dissents of more liberal colleagues. Based on my review of the last Supreme Court term, it's more often the other way around. I recently examined last year's Supreme Court cases looking for decisions in which the more conservative and more liberal justices disagreed about the constitutionality of existing laws or administrative acts. In cases that split the justices into relatively predictable ideological camps, I asked, which group voted to invalidate the other branches more often? The more conservative justices (William Rehnquist, Antonin Scalia, Clarence Thomas, and sometimes Anthony Kennedy and Sandra Day O'Connor) or the more liberal ones (David Souter, Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg)?

Roughly a dozen of the court's 83 cases involved fairly clear ideological splits on the scope of constitutional rights. (Many cases did not involve constitutional questions at all, and those that did usually failed to produce neat camps of left versus right.) Within the dozen or so cases, however, the more liberal justices favored striking down the other branch of government almost twice as often as the conservatives did. The trend was strongest in criminal cases.

For example, the more liberal justices struck down state laws regulating the right to counsel for defendants facing suspended sentences in Alabama v. Shelton, invalidated laws that allowed for capital punishment of mentally retarded defendants in Atkins v. Virginia, and voted against a Kansas law designed to rehabilitate sex offenders in prison in McKune v. Lile. Similarly, the liberal justices voted to block Cleveland's school choice program in Zelman v. Simmons-Harris and voted to invalidate efforts to regulate adult bookstores in Los Angeles v. Alameda Books. In all of these cases, the more conservative justices voted to uphold laws that the more liberal justices voted to strike down.

In a few cases, the opposite occurred: The conservative justices voted to strike down laws that the more liberal justices wished to uphold. Two of these decisions involved government regulation of businesses. The conservative justices invalidated restrictions on pharmaceutical advertising in Thompson v. Western States Medical Center and voted against uncompensated land-use restrictions in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency. And in one federalism case, Federal Maritime Commission v. South Carolina State Ports Authority, the conservative justices ruled that a federal agency cannot decide a suit against a state agency without the state's consent.

I don't want to make too much out of one Supreme Court term. The results of a single term can only be suggestive, and, as noted earlier, judicial invalidation alone provides a poor proxy for activism. Further, defining ideological camps is itself subjective and a bit arbitrary; labels like "conservative" and "liberal" invariably lack nuance. But, at the very least, the pattern suggests a certain myopia among those who rely on the number of laws the Supreme Court invalidates as a sign of its conservative activism. True, the conservative justices occasionally vote to strike down legislative acts that the more liberal justices would uphold. But the opposite happens as well. And at least based on the last term, ideological splits more often feature the conservatives voting to uphold the laws than the other way around.

A RESPONSE TO MY ARGUMENT MIGHT GO SOMETHING LIKE this: Even if the Rehnquist Court's conservatives are not outright activists, they still deserve criticism for failing to consistently embrace judicial restraint. After four decades of attacking judicial activism, surely conservatives have a special duty to embrace restraint even though they now have the votes to push the courts in an activist rightward direction.

I largely agree with this critique. It is easy for a dissenting judge to charge activism; it is far harder for a majority of judges to exercise restraint. I think the current court has a decent record on this front, but plainly not a perfect one. Bush v. Gore provides one example of the court's conservatives straying from the principles of restraint. I'm no expert in election law, but the majority opinion in Bush v. Gore seems plainly unpersuasive to me; the court constitutionalized a question that should have been left to state law and state courts. Even as an effort to block the activism of the Florida Supreme Court, I think it fails. At the same time, such inconsistency extends beyond the more conservative justices of the current court. Many critics who now denounce judicial activism on the right used to defend it on the left. If the charge is occasional inconsistency, perhaps everyone should plead guilty.

In the end, the fact that both sides of the political spectrum now make charges of judicial activism against the other isn't a bad thing. It shows that on a rhetorical level, at least, judicial restraint has won favor. Activism is notably out of style. Perhaps this reflects that the politics of the judges and the public roughly match; both sides can appreciate the risks of losing in the courts. Or perhaps each side's ox has been gored often enough that they're beginning to see the institutional benefits of a less activist judiciary. Either way, I hope that our judges are listening. Our democracy will be the better for it.

Orin S. Kerr is an associate professor of law at the George Washington University School of Law and a former trial attorney for the Criminal Division of the U.S. Department of Justice.

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