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Another Perspective
Needed: Judicial Activism
Constitutional restraints trump judicial restraint.
When it comes to the issues, it’s much harder than it should be to find substantive differences between President Obama and Mitt Romney. One potential difference is in the two candidates’ potential Supreme Court nominations. This is important; there will almost certainly be some turnover in the next four years. Justice Breyer is a spry 73, while Scalia and Kennedy are 76, and Ginsburg is 79. That’s four potential picks right there. But again, the differences between Romney and Obama’s possible selections are overhyped. Both men would seek the same dominant trait in their nominees: deference.
If the Supreme Court’s health care ruling showed us anything, it is that the Court, contrary to claims by partisans both right and left, will do almost anything to defer to the other branches. Some pundits, such as New York Times columnist David Brooks, praised what they see as judicial restraint on the part of Chief Justice John Roberts, who argued that the mandate falls within Congress’ power to “lay and collect Taxes.” Progressives and conservatives alike claim to disdain judicial activism.
Of course, both sides’ cries of judicial activism are really shorthand for “I disagree with this decision.” Many cases derided as judicial activism have in fact involved the Court striking down unconstitutional actions by the other branches.
All judicial activism is not the same. The Court should not legislate from the bench. But the very core of the Supreme Court’s job description is to say “no” when Congress passes blatantly unconstitutional legislation, such as restrictions on political speech or a health care bill that defines inactivity—failing to buy health insurance—as “interstate commerce.”
Judicial deference to the government’s other branches is routinely touted as virtuous. We saw a great example of this in Elena Kagan’s Senate confirmation hearing. As she told the Senate Judiciary Committee:
“I would go back I think to Oliver Wendell Holmes on this. He was this judge who lived in the early 20th Century — hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. Now, that‘s not always the case but there is substantial deference due to political branches.”
Justice Kagan is correct that the Court shouldn’t decide cases based on the Justices’ personal views of what constitutes good policy. But they do have an obligation to base their decisions on the limits placed upon the federal government by the Constitution.
No matter which party is in power, Congress and the White House often overstep their constitutional authority. From the political speech restrictions in McCain-Feingold to the Washington, D.C., handgun ban, examples of the Supreme Court striking down unconstitutional legislation are not hard to find. That is the kind of judicial activism we need more of.
Unfortunately, as the health care decision shows, we don’t get enough of it. That is partly because the political branches pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judges who will defer to the political branches of government. As Georgetown University law professor Randy Barnett told The Wall Street Journal, “If I want to bet actual money, I’ll always bet the court upholds anything Congress does.”
Instead of looking to Oliver Wendell Holmes, the Court should recall the lesson of the Marbury v. Madison decision of 1803. In that case, Chief Justice John Marshall asserted the Court’s authority to strike down unconstitutional laws. “It is emphatically the province and duty of the Judicial Department to say what the law is,” he wrote in the decision.
The Supreme Court badly needs a dose of judicial activism. But there is a difference between activism motivated by political concerns and activism motivated by constitutional ones. Justices should not base their decisions on the merit of a law, but they obviously should base them on a law’s constitutionality. When Justices seek ways to stretch the meaning of the constitution to the point of absurdity, as Roberts and others have done, they are not doing their job.
That doesn’t mean they should legislate from the bench. It means they need to say “no” when Congress and the president go too far. A weak court isn’t virtuous; it’s just weak.
About the Author
Ryan Young is Fellow in Regulatory Studies at the Competitive Enterprise Institute.
Letter to the Editor View all comments (11) | Leave a comment
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Al Adab| 8.14.12 @ 11:45AM
Right here on AmSpec we see the great problem in our erstwhile self-governing nation. It is this late in the day and this is the first comment posted. The actual workings of our government bore us while the incessant battles draw our attention. There are bigger issues than the symptomatic social and economic ones. These systemic matters are of utmost significance.
RJ| 8.14.12 @ 12:14PM
A very valid point, Al Adab and a good article by Ryan.
Here are some comments from Professor David Currie from his book, "The Constitution in the Supreme Court, 1888-1986"
"The record of the first two hundred years graphically reveals both the weaknesses and the dangers of judicial review. In a number of crises, on the one hand, the Court has proven unable or unwilling to prevent other branches from exceeding their authority. When Congress effectively reduced the Southern states to colonies after the Civil War, the judges lacked the audacity to intervene. When the Congress in the 1930s was intimidated into submission. When freedom of expression was endangered by popular hysteria during the First World War, the Court went along without a murmur; when the problem recurred after the Second World War, it protested cautiously and then withdrew from the field. … Even favorable decisions of the Supreme Court failed to effectuate the voting rights of blacks until other branches of the federal government finally added their weight to the scale." (page 603)
Indy| 8.14.12 @ 12:34PM
This is an area where Romney worries me, who will be on his search team if he wins...we need more like Alito, Thomas and Scalia. First defeat Obama, but never go to sleep, we will need to put on a full court press for conservatives who have been fully vetted, no more surprises like Roberts.
Al Adab| 8.14.12 @ 1:22PM
Correct Indy. We have to be on our guard. Remember Harriet Myers!
RJ| 8.14.12 @ 2:11PM
Her nomination was a real low point for me, particularly coming after what I thought was a solid nomination in Roberts. A truly depressing moment. Then, there is Roberts. I cannot comprehend his Obamacare opinion.
Albert Constantine Jr.| 8.14.12 @ 10:31PM
Indy, you are correct that the price of liberty is eternal vigilance. While we do battle on many fronts, we constantly need to be developing and expanding the ranks of conservatives throughout society, to include the judiciary.
C. Vernon Crisler | 8.14.12 @ 12:48PM
Right now, we have an out-of-control Supreme Court. Since at least the late 1940s, it has been exercising powers that were never granted to it by the Constitution, e.g., interfering with State morals legislation. If we ever go back to being a Constitutional government, we'll need to make sure most of these Supreme Court justices are tarred and feathered -- with Roberts getting an extra batch of feathers -- before we send them to jail.
RJ| 8.14.12 @ 2:04PM
Yes, the Supreme Court has failed over the years to uphold Constitutional limitations on government.
Another quote from Professor David Currie's "The Constitution in the Supreme Court, 1888-1986" (Charles Evans Hughes was appointed by Herbert Hoover and served as Chief Justice from 1930 to 1941)
"The Constitution was very different at the end of Hughes’ tenure from what it had been at the beginning. The retreat of substantive due process in economic cases was a blessing; the doctrine had been illegitimate from the start. In rewriting the contract clause and eradicating federalistic limitations on national authority, however, the Court seemed to embrace the dangerous principle that constitutional provisions that did not suit contemporary needs could be ignored. All nine Justice voted to enforce the limitation on congressional power in Schechter; two years later five of them voted to disregard it. (page 271)
The revolution was often explained in terms of Justice Holmes’ familiar argument of judicial restraint. In cases involving “ordinary commercial transactions,” wrote Justice Stone in the Carolene Products case, “in the absence of statutory findings” supporting the legislative judgment “they would be presumed.” (pages 271-272) … Other decisions, however, contained little hint of deference to legislative determinations. … In fields of criminal procedure, civil rights, and civil liberties the Court was more aggressive than ever before." (page 272)
cicero| 8.14.12 @ 4:41PM
AlAdab, and others - We spend much time and energy watching and lamenting the workings of the Supreme Court. We spend far too little time doing the same relative to the inferior courts. We were told in the Federalist Papers, thus being induced to ratify the Constitution, that the judicial branch was to be the least powerful of the three. We are now in a position where the judicial branch does whatever is wants, and is basically immune from ontrol by the voters. On the Ferderal level, there are the lifetime appointments. On the State level, there is a complete lack of oversite by the press, and the voting public.
There must be something in the dye used in the judicial robes. After the newly elected/appointed are on the bench for a short time, they tend to believe themselves Solomons, and do whatever is necessary to achieve the results THEY deem worthy, regardless of what the LAW dictates. As I often say to clients who ask what the outcome of a case will be - It depends on whether the judge decides tyo follow the law, or make it up.
RJ| 8.14.12 @ 5:20PM
I think it is the same disease that affects legislators who have been in office too long. It used to be that a judgeship was something that a distinguished lawyer would be honored with near the end of his/her career. They would serve a few years, then retire. In those days, it was viewed as "public service." Now we have people who want a judicial career and usually they come with an agenda that does not include following the law. Instead they seek to "do justice" regardless of what the law is. As the state gets more powerful, more and more things become politicized.
Timely Renewed | 8.15.12 @ 9:34AM
Appointing constitutional conservatives to the Supreme Court is important, but we can not count on the Supreme Court alone to defend the Constitution. Even a conservative justice is not going to overturn 75 years of Supreme Court decisions which have allowed the federal government to expand far beyond its original constitutional limits.
To do that we must resort to the ultimate power the Framers left us - amendment. Only constitutional amendments restating and re-affirming those original limits will save our Republic. Of course, Congress will never initiate such amendments. Therefore, we must first reform the amendment process to enable the states to initiate and enact amendments without having to go through either Congress or the unworkable and dangerous mechanism of a convention. See http://www.timelyrenewed.com