As Washington gears up for the first Supreme Court confirmation battle in over a decade, expect to hear the phrase "judicial activism" batted around a lot. It's a term of abuse long popular on the Right that has started gaining currency among liberals.
While Republican senators catalogue the outrages that attend legislating from the bench, Senate Democrats will attempt to discern whether John Roberts fits into the category of an "activist" conservative -- one of those jurists who, wrote Jeffrey Rosen in the New Republic, "want to resurrect what they call the 'Constitution in Exile,' enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause."
Herein one finds the source of much confusion. "Judicial activist" is hurled both at judges who usurp legislative prerogatives and those who enforce constitutional limits on the federal government (especially long-ignored ones) alike. Judicial arrogance thereby becomes indistinguishable from constitutionally legitimate judicial review.
It gets murkier yet: Some libertarians fear that Republican attacks on the former threaten the latter. This leads some of them to part company with conservative proposals to limit the jurisdiction of the federal courts. Others have sought to rehabilitate the whole concept of judicial activism.
The July issue of Reason, for instance, carried a fascinating piece by Damon W. Root making the case that "principled judicial activism" is consonant with the libertarian understanding of limited government. Root points to federal court decisions between Reconstruction and the New Deal that struck down Progressive economic regulations and vindicated private-property rights (exactly the sort of jurisprudence critics of the alleged "Constitution in Exile" project have in mind).
Conservative wags have long joked that if liberal judges could transform First Amendment free-speech guarantees into protections for pornographers and naked dancers, right-wingers might as well get into the act by appointing judges who combine their ideology with a similarly expansive reading of the Constitution. If naked dancing can be free speech, why can't the progressive income tax be regarded as unconstitutional involuntary servitude?
Appealing as this vision may be, it's not without problems. The Framers designed a federal government of limited, enumerated powers. Those of us who favor adhering to those limits are already subject to criticism that we are reading our policy preferences into the Constitution. A libertarian judicial activism -- if it's truly activism rather than constitutional enforcement -- explicitly confuses constitutionality with desirability.
Empowering judges to strike down laws in accordance with small-government policy preferences -- that is, regardless of their compatibility with the Constitution and its amendments as ratified -- gives them the power to act according to big-government policy preferences as well. It's telling that since the New Deal, the federal judiciary has generally not been protective of economic liberties. Instead, it has tended to consolidate federal power in most areas.
The inherent pitfall in relying primarily on the judiciary to limit government is that it relies too heavily on the appointment of judges with the correct sympathies. Otherwise, they will use oversized judicial powers to grow government rather than curb it.
If we don't trust the elected branches to respect individual rights, why should we place so much faith in their personnel decisions with regard to the courts? Will centralization really produce greater gains for liberty over time than the Founders' federalism? And as a practical matter, are there really more Richard Epsteins out there to be given judgeships than Anthony Kennedys?
THOSE RELYING ON THE COURTS as their main line of defense for individual freedom have received two recent disappointments: Gonzales v. Raich and Kelo v. New London. In both cases, Court liberals should have been sympathetic to the plaintiffs' rights, creating the possibility that justices would join forces across blocs to protect liberty. Instead the majority sided with the drug warriors and the property-takers, respectively.
If libertarians couldn't prevail in those cases, they must ask themselves how many champions (or even allies) they really have in today's federal judiciary.
Both the rule of law and the long-term project of limiting government would be better served by a consistent originalism than a results-oriented activism. This imposes neutral rules that judges as well as elected officials must abide by and places the written Constitution above Supreme Court case law. And it confers greater legitimacy upon the entire judicial process.
The first step is to clarify the debate. Striking down an unconstitutional law, even one supported by a popular majority, is not judicial activism. Assuming the powers of other branches or arriving at decisions with no basis in the Constitution, as understood by those who ratified it, is activism even when the ruling accomplishes a noble result.
Such an originalist approach will not always produce agreements about court decisions or even the judiciary's role vis-a-vis the elected branches. Antonin Scalia is going to have different ideas about judicial restraint than Randy Barnett.
Originalists, however, aren't activists. Making this clear won't end the "Constitution in Exile" meme, but it might help constitutionalists emerge from exile.
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