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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

A Hand in the Matter

Has the Rehnquist Court pushed its agenda on the rest of the country?

By Cass R. Sunstein

WHAT IS JUDICIAL ACTIVISM? Would it be activist for courts to attempt to restore the Constitution as it was understood in the decades before the New Deal, when the founding document was read to embody laissez-faire economics? Does Brown v. Board of Education, invalidating racial segregation, count as an activist decision? Does Roe v. Wade, because it extended the right to privacy to include a woman's right to an abortion? Would it be activist for the current court to overrule Roe?

There are, broadly speaking, two accounts of judicial activism. Some people label a decision "activist" when they think that the court has departed from the correct approach to the Constitution. On this view, the word "activist" isn't merely a description; it is also and always an insult. When people criticize a court for unjustifiably contracting or expanding constitutional rights, and call the contraction or expansion "activist," they usually mean that the court is departing from the right understanding of the Constitution. To label a decision as activist is to say that it is wrong.

On a different account, the word "activist" is purely descriptive, and a decision that is activist is not necessarily wrong. A court that rejects its own precedents might be thought to be activist. Of course some courts should reject some precedents because they are ludicrously mistaken or hopelessly outdated. A court that is activist, in this sense, might be entirely right. Or a court might be described as activist if it strikes down the actions of other branches of government. No one thinks that a court should uphold all actions of the other branches, and so a court that is activist, in this sense, might be something to celebrate.

People are free to use the term "activist" however they wish, so long as listeners understand what they mean. But the risk of misunderstanding is very high. To reduce that risk and prevent confusion, I suggest that it is helpful to measure judicial activism in the way just mentioned—by seeing how often a court strikes down the actions of other parts of government, especially the actions of Congress. Such decisions preempt the democratic process—they take decisions out of the hands of voters.

On this definition, Roe v. Wade is an activist decision, whereas the much-despised Plessy v. Ferguson, upholding racial segregation, is not. (Bowers v. Hardwick, the 1986 decision upholding bans on homosexual sodomy and now being revisited by the court, is restrained in the same sense as Plessy.) We might agree that a court that frequently invalidates statutes is activist, while a court that rarely does so is restrained. I am proposing this approach simply as a way of defining terms and getting clear on what we are saying. I don't mean to suggest that an activist court, so defined, is always wrong, or that a restrained court, so defined, is always right.

Orin Kerr's otherwise illuminating essay in this issue seems to me to confuse matters by avoiding any simple test of activism (see p. 31). He writes that "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." This is indeed a flaw if activism is necessarily wrong; but if, for the sake of clarity, activism is defined as judicial invalidation, there is no flaw.

Of course we should not give up on the enterprise of evaluating what courts do. A court that wrongly invalidates statutes might be said to show unjustified activism; a court that wrongly upholds statutes might be said to show unjustified restraint. We could go further. A court that fails to root its decisions in the Constitution, that does so on numerous occasions, that decides in accordance with its own political predilections, and that frequently invalidates the decisions of others is guilty of illegitimate activism. A court that fails to invalidate the decisions of other branches, even those other branches that have conspicuously violated the Constitution, and that embarks on this path on numerous occasions is guilty of illegitimate restraint. Of course there are right-wing and left-wing versions of activism, unjustified activism, and illegitimate activism.

These distinctions are useful because they give us clearer tools for analyzing what courts do and prevent the word "activism" from becoming a kind of all-purpose term of unhelpful abuse. Consider the Rehnquist Court. As a result of its performance over the past decade it has now joined the Lochner Court (so-called for its 1905 Lochner v. New York decision) and the Warren Court of the 1950s and '60s as one of the few courts in the nation's history that have engaged in illegitimate judicial activism. Such activism blocks voters from enacting the laws they choose and does so without a sufficient constitutional basis.

By the measure I'm proposing, the Warren Court was highly activist toward state government and much less so toward Congress. The Warren Court was quite willing to invalidate state law, for example, by striking down segregated schools and by outlawing electoral systems that violated the one-person-one-vote rule. But it took a highly deferential approach to the national legislature, striking down few laws enacted by Congress. By contrast, the Rehnquist Court is highly activist in its approach to both state government and Congress. Remarkably, the Rehnquist Court has struck down at least 26 acts of Congress since 1995, often via conclusions that fit the agenda of extreme elements of the Republican Party. For example, the court has invalidated parts of the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the Violence Against Women Act. It is in this sense that the Rehnquist Court has been engaged in right-wing judicial activism.

MY NEUTRAL DEFINITION OF ACTIVISM HAS AN APPARENT disadvantage: By itself, it tells us nothing about how we should evaluate courts. Suppose that Congress is enacting patently unconstitutional laws—say, a dozen each year—and that the Supreme Court is invalidating every one of them. This court is activist, yet its decisions are entirely justified. In Brown v. Board, the court was certainly activist. But most people believe that it was also right, in the sense that its decision was based on a proper understanding of the Constitution. Indeed, the nation has now achieved a bipartisan consensus on the correctness of Brown. (I don't intend in this space to offer an account of what makes a decision correct, so I simply note the consensus here.) The Rehnquist Court has invalidated an astonishing number of federal statutes, but perhaps in passing them Congress has repeatedly ignored constitutional limitations. If so, the numerous invalidations should be celebrated, not lamented.

But while some instances of judicial activism are unjustified, in the sense that they are unsupported by the best reading of the Constitution, other instances are unjustified and illegitimate, in the sense that they are too closely connected with the political convictions of the judges and are far worse than an incorrect reading of the Constitution. It's generally agreed that before and for part of the New Deal, the Supreme Court engaged in illegitimate judicial activism because it interpreted the due process clause of the Fourteenth Amendment, quite implausibly, as banning minimum-wage and maximum-hour legislation, along with other efforts to combat inequality in the labor market.

Here is some evidence that the Rehnquist Court can be fairly charged with illegitimate activism:

1. The Rehnquist Court has ruled that Congress lacks the power to give citizens the right to sue the federal government for unlawful action under environmental statutes. In so doing, the court invalidated, in effect, dozens of Congressional enactments, which purport to give citizens that very right. Constitutional history strongly suggests that Congress has the power that the court denied it. But in invalidating the citizens' suit, the court ventured not a word about the history or about the framers' original understanding. Indeed the court made no effort to connect its unprecedented decision to the text, structure, or history of the Constitution. This is particularly disturbing, because some of the key justices (most prominently Justices Antonin Scalia and Clarence Thomas) usually purport to base their decisions on what history tells us—and in invalidating federal legislation, Justices Scalia and Thomas have said nothing about history.

2. The court has struck down a number of affirmative action programs adopted at both the state and federal levels. Does the Constitution clearly forbid such programs? It does not. Justices Scalia and Thomas have expressed the greatest willingness to strike down affirmative action programs, but the history of the equal protection clause strongly suggests that such programs were not thought to be unconstitutional. To date, no one on the court has discussed the relevant history in an opinion.

3. The court has struck down a number of state and federal efforts to regulate commercial advertising. Justice Thomas has gone so far as to suggest that commercial advertising should receive the same level of constitutional protection as political dissent—and the Rehnquist Court has unquestionably moved in his direction. But the idea that the Constitution provides strong protection to commercial advertising is novel, and the court has made no effort to show that the idea is compelled by the original understanding, or any plausible understanding, of the Constitution.

4. The court has used the idea of state sovereign immunity to strike down a number of congressional enactments, including parts of the Age Discrimination in Employment Act and the Americans With Disabilities Act. In doing so, the court acknowledged that its decisions are not based on the text of the Constitution.

5. Section 5 of the Fourteenth Amendment gives Congress the power to "enforce, by appropriate legislation," the provisions of that amendment. In a remarkable, precedent-busting series of decisions—striking down the Religious Freedom Restoration Act (which required employers to justify, in strong terms, any practices that interfered with religious practices), the Violence Against Women Act (which gave victims of gender-motivated violence a right to sue in federal court), and part of the Americans With Disabilities Act—the Rehnquist Court has dramatically reduced Congress's power under Section 5. It has effectively concluded that Congress is limited to preventing conduct that, in the court's own view, would violate the Fourteenth Amendment—and has thus forbidden Congress from legislating on the basis of its own views about what that amendment means. The court has reached these conclusions, and insisted on its own supremacy, without seriously grappling with pre-Rehnquist Court precedents or the history of the Fourteenth Amendment.

6. For the first time in 50 years, the Rehnquist Court has struck down federal legislation as beyond congressional power under the Commerce Clause. In the most important case, the court struck down a key provision of the Violence Against Women Act, notwithstanding extensive testimony before Congress, and extensive findings by Congress, that sex-related violence has a significant effect on interstate commerce.

IN THESE SIX AREAS (AND MORE), THE REHNQUIST COURT HAS been highly activist in my understanding of that term. In fact the court has been exceedingly willing to strike down congressional (and also state) enactments, not when the Constitution is clear, but when it is unclear and when reasonable people can disagree about what it means. This has been the most dramatic and important tendency of that court—far more dramatic and important than what some critics see as unjustified restraint, in the form of an unwillingness to extend the rights-protecting decisions of the Warren Court. The tendency toward activism is important because it denies other parts of government the power to act. If the court concludes that the Constitution does not protect the right to choose abortion, the electoral process can be used to protect that right. But if the court rules that the Constitution forbids affirmative action programs, or campaign finance reform, those issues are closed.

In one respect, the activism of the Rehnquist Court represents a curious replay of history. The Warren Court took great pains to separate itself from the Lochner Court. It emphasized, on many occasions, that it would not impose limitations on federal and state government that could not be found in the Constitution itself. Hence the court upheld a great deal of legislation that would have been struck down in the Lochner era, when the court was extremely aggressive.

But at the same time, the Warren Court created its own, new limitations, some of them exceedingly hard to find in the Constitution. For example, the Warren Court required police to give the Miranda warnings and imposed the rule of one-person-one-vote on state government (but not, of course, on the Senate and the Electoral College, both of which do not comply with one-person-one-vote).

In a way, the Rehnquist Court has the same relationship to the Warren Court as that court had to the Lochner Court. Disparaging some of the enterprises of the Warren Court, the Rehnquist Court has nonetheless been embarking on many larks of its own. But there is something genuinely new about the Rehnquist Court: its cavalier attitude toward Congress. The Warren Court treated the nation's legislative branch as entitled to great respect, upholding its decisions even when there was room for reasonable doubt. Much of the time, the Rehnquist Court affords no respect to Congress at all.

The last point is noteworthy, because Congress is a coordinate branch of government, one that usually enacts laws with the president's approval (or by a supermajority over his veto) and that therefore deserves a large measure of respect from the court. For most of the nation's history, the Supreme Court has been reluctant to invalidate congressional enactments precisely on the ground that such invalidations raise serious questions about the judicial role in a democracy. Of course the court should strike down acts of Congress when they are plainly unconstitutional. The problem with the Rehnquist Court is that it has done so when the Constitution is unclear and when many reasonable people have concluded that Congress has the power to enact the law under review.

OF COURSE MANY OF THE REHNQUIST COURT'S DECISIONS are defensible. But too much of the time, the court has invalidated legislative enactments without anchoring its judgments in a plausible understanding of the Constitution. Consider two important clues. First, a number of the justices on the Rehnquist Court have insisted on the relevance of the "original understanding" to constitutional interpretation; but many of their invalidations have occurred without the slightest consideration of history. Second, many of the invalidations fit uncomfortably well with the political preferences of the extreme right. When the court is invalidating legislation without looking at the ordinary sources of law, and when its decisions match its own political predilections, we are entitled to suspect that its activism is illegitimate.

It is interesting to ask about the sources of illegitimate activism. How and why can a court fall into it? Part of the answer lies in the fact that the Constitution is often ambiguous, and its great phrases ("equal protection," "due process," "freedom of speech") can be understood in many different ways. Where the Constitution is ambiguous, people are most likely to read it in a way that fits with their own political commitments.

This was one of the central problems in the Lochner era, in which the court used the due process clause to strike down minimum-wage and maximum-hour legislation. In addition, an occupational hazard of the judicial role is hubris: an excessive respect, on the part of judges, for the wisdom of judges, alongside insufficient respect, by judges, for the judgments of other branches of government—who (it should be recalled) have their own duty of fidelity to the Constitution. This point makes it easier to see the good faith in the bad decisions of the Lochner Court: Those old and now-despised justices really thought that they were speaking for the Constitution.

The same things can be said for some of the decisions of the Warren Court, including the one-person-one-vote decision and Miranda itself. Undoubtedly the Warren Court struggled with the question whether its decisions had a sufficient constitutional basis, and, equally undoubtedly, the Warren Court was responding to grave injustices in American society. When the Constitution uses words like "equal protection" and "liberty," it is hard to think that grave injustice is permissible. And of course the Warren Court was often attempting to protect the preconditions of democracy itself; the one-person-one-vote decision has been justified in these terms. The problem is that one-person-one-vote has no clear basis in the Constitution. It is for this reason that the one-person-one-vote decision, while appealing in democratic terms, seems to me a form of illegitimate judicial activism.

The Rehnquist Court does not seem to think that it is uprooting injustice or protecting democracy. Frequently it is antidemocratic and unapologetically so. In its very worst decisions, it is much like the Lochner Court: When it strikes down legislation, it does so with the confident but unjustified belief that it is really speaking for the Constitution.

Consider the area of affirmative action. The court has increasingly made clear that it will not tolerate programs that give a "plus" to African-Americans, and has been taking such programs out of the hands of voters. Apparently, the court thinks that in limiting affirmative action, it is speaking for the Constitution. But the court's arguments are extremely flimsy. As I have said, the court has not even bothered to investigate the original views of the authors of the Fourteenth Amendment—an astonishing omission for judges who claim to care about history.

NONE OF THIS MEANS THAT THE SKY HAS FALLEN. FOR THE MOST PART, the Rehnquist Court's decisions have been incremental, and the court has not imposed huge new impediments to democratic government in the United States. But if the current tendencies are not monitored and exposed for what they are, they will turn out to be the start of a major transformation in American law. Consider a fact that has received little public attention: Within some prominent circles, including many lawyers and some judges on the far right, a new narrative of American history has attained considerable prominence. Here it is, in a nutshell:

The American constitutional system functioned well, and just as it was supposed to, between the founding and about 1936. In that period, Congress had sharply limited powers. The "nondelegation doctrine" banned Congress from giving broad discretion to the executive branch. The "takings" clause protected property rights against governments. Freedom of contract was safeguarded by both the contracts clause and the due process clause, which banned maximum-hour and minimum-wage legislation. But in the late 1930s, the framers' careful handiwork collapsed. It did so when the Supreme Court capitulated to the mob, in the form of Franklin Delano Roosevelt and the New Deal. As a result, the real Constitution was sent into exile. The Warren Court extended the damage to the Constitution by substituting a set of principles of its own choosing. America's Constitution—the pre-New Deal Constitution—remains to be restored by jurists, legal thinkers, and others who care about it.

This narrative reflects no serious attention to the actual Constitution or its history. There is no reason to believe that the framers of the Constitution sought to forbid Congress from giving broad discretion to the executive branch. The takings clause was originally meant to be quite narrow. What is said to be the Constitution in exile is a creation not of the framers, but of a group of partisan activists at the close of the 20th century who are determined to restore a form of economic laissez-faire and who would ask courts to do that for them. But in some of the Rehnquist Court's least defensible decisions, a majority of justices have expressed sympathy for the idea that the real Constitution really is in exile—and that it is their job to restore it.

From the standpoint of democracy, this would be worse than a misfortune. The Rehnquist Court is enthusiastically committed to judicial activism. Some of its decisions are unjustified; too many of them are illegitimate. But much more, and much worse, may be on the way.

Cass R. Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago and the author most recently of Risk and Reason.

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