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Judicial Activism, Real and Imagined
The controversy over the Terri Schiavo case is but the latest occasion for some conservatives to complain about so-called “activist” federal judges. Terri Schiavo, the brain-damaged Florida woman who was the center of the story that dominated national headlines for the past several weeks, finally died last Thursday. (To say that Terri died, however, is not exactly correct: really, it was her body that died. As I have been arguing here, the essence that identified Terri Schiavo as an individual human being – her mind, or that part of her brain that made her capable of thought – had been dead for the past 15 years. Incidentally, has anyone else noticed the hyprocrisy of the Roman Catholic Church in its disparate treatments of Terri Schiavo and Pope John Paul II? The Church encouraged Mrs. Schiavo’s parents to hope for a miraculous recovery, contrary to all the medical evidence, and it advocated keeping her body alive at all costs. John Paul II, in contrast, declined hospital treatment and was allowed to die naturally, presumably without medical treatment to prolong his life. Can one imagine Vatican authorities keeping the Pope alive in a persistent vegetative state, the zombie-like continued existence they advocated for Mrs. Schiavo? As the Church’s child-abuse sex scandals so vividly illustrate, we cannot expect religious authoritarians, any more than any other kind of authoritarians, to practice what they preach.) But the controversy over the way the judicial system, both state and federal courts, handled the Schiavo case still rages on. Conservative commentators (such as radio talk-show host Rush Limbaugh) and Republican leaders in Congress assailed what House Majority Leader Tom DeLay (R-Tex.) called an “arrogant, out-of-control, unaccountable judiciary.” DeLay first had accused Pinellas County Circuit Judge George Greer, the Florida state trial court judge who had presided over Terry Shiavo’s case, of “trying to kill Terri for 4½ years.” (Judge Greer is now under police protection because of death threats.) Last week, DeLay issued a statement warning that “the men responsible for this” will be held accountable, apparently suggesting that Congress might consider impeaching federal judges who did not rule the way they wanted. (Congressman DeLay, by the way, is not only a demagogue but also a hypocrite as well: it’s been reported that he joined other members of his family in ordering the removal of a ventilator that was keeping his father alive after a serious accident – and thus, under the same standard he applied to Michael Schiavo and the courts, it could be said that DeLay participated in a conspiracy to murder his father by suffocation!) One judge responded, indirectly, to such criticisms. After the U.S. Court of Appeals for the 11th Circuit last Wednesday again rejected a request for a new hearing in the case, Judge Stanley Birch (who was appointed to the federal bench by the elder President Bush) rebuked Congress and President Bush for acting “in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people – our Constitution.” The judge was referring to the federal statute that created a private cause of action for Mrs. Schiavo’s parents, Mary and Bob Schindler, allowing them to file a lawsuit requesting a hearing in federal court, to second-guess the decisions of the Florida state courts. In his concurring opinion, Judge Birch maintained that the federal statute was unconstitutional. He found the statute, Pub. L. 109-3, to be in violation of “core principles of separation of powers.” The statute not only gave jurisdiction to the federal district court but also provided that the court: (1) “shall engage in `de novo’ review of Mrs. Schiavo’s constitutional and federal claims”; (2) “shall not consider whether these claims were previously `raised, considered, or decided in State court proceedings’”; (3) “shall not engage in `abstention in favor of State court proceedings’”; and (4) “shall not decide the case on the basis of `whether remedies available in the State courts have been exhausted.’” Because these provisions “constitute legislative dictation of how a federal court should exercise its judicial functions,” the statute invaded the province of the judiciary. Indeed, these provisions were contrary to “judicial doctrines long-established for the conduct of prudential decisionmaking,” including the so-called Rooker-Feldman doctrine (named after U.S. Supreme Court decisions from 1923 and 1983, respectively, that limit the federal courts’ jurisdiction to review the final judgments of state courts). In other words, Congress violated the Constitution by enacting a law that attempted to dictate a rule of decision in a particular case. Judge Birch was correct in finding the law unconstitutional; indeed, he actually understated the unconstitutionality of the federal statute. The judge recognized that although Congress has power to legislate regarding the jurisdiction of federal courts, it cannot exercise that power contrary to Article III of the Constitution, which defines the scope of the “judicial power of the United States,” limiting federal courts to claims “arising under the Constitution, laws, or treaties of the United States” and certain claims between citizens of different states. Judge Birch seemed to assume that Mrs. Schiavo’s parents’ claims validly arose under federal law because their second, amended complaint cited, in addition to Pub. L. 109-3, three federal laws – the Americans With Disabilities Act, the Civil Rights Act, and the Rehabilitation Act of 1973 – but no sensible interpretation of those laws would apply them to this case. Mrs. Schiavo’s case involved questions determined solely by Florida state law; it did not involve any legitimate questions “arising under the Constitution, laws, or treaties of the United States.” Therefore, by creating special jurisdiction for federal courts to consider the case, Congress exceeded its legitimate powers under Article III of the Constitution. Even more troubling, constitutionally speaking, is the extraordinary nature of the federal statute itself. It is not only a private law, applying only to Mrs. Schiavo’s case, but it confers jurisdiction on a particular federal court, named in the statute – the United States District Court for the Middle District of Florida – explicitly in order to hear a lawsuit and provide relief for just one party in the case, the parents of Mrs. Schiavo, who are the sole persons given standing to sue under the law. Although Congress has had a long history of passing private bills, for the “relief” of particular persons or classes of persons, such laws are properly regarded as an abuse of Congress’s legislative power. (In the late 19th century President Grover Cleveland, properly exercising his presidential powers, vetoed many such bills during his eight years of office, because he regarded them as unconstitutional.) Indeed, in one sentence of his opinion, Judge Birch noted, “Manifestly, because the Act applies to only this case it lacks the generality and prospectivity of legislation that comports with the basic tenets of the separation of powers.” Such a one-sided law violates other fundamental constitutional principles, including the Fifth Amendment’s due process clause. By creating a special remedy for one party in the Schiavo litigation, the law denies the other party – Michael Schiavo – his rights without due process of law. And because the law applies only to this one case, it denies similar remedies to other persons in similar cases. Moreover, such a special law also violates the basic constitutional guarantee of the equal protection of the laws, applied to the federal government through the Fifth Amendment. As I have previously noted here, the special federal law essentially is the civil equivalent of a bill of attainder; and although it doesn’t violate the letter of the Article, Section 9 prohibition of bills of attainder (which strictly apply only to criminal actions), it violates the underlying principle of the provision, that Congress ought not to determine by legislation matters that properly fall within the jurisdiction of the courts – another separation of powers principle. As I have noted previously in these entries, the government officials who have acted in an “arrogant, out-of-control” way in the Schiavo case were not the judges, state or federal, but rather the politicians in the other two branches of government: first, Gov. Jeb Bush and the Florida legislature, who tried to intervene with a law ruled unconstitutional by the Florida courts; and then, President Bush and Congress, with this federal law. The courts, on the other hand, acted responsibly, consistent with the rule of law. I don’t usually agree with USA Today editorials, but the paper’s editorial last Friday put it all rather well: “During more than a decade of wrangling between Schiavo’s parents and her husband, state and federal judges possessing a wide range of political and religious beliefs reminded both the family and politicians that this is a nation ruled by laws, not passions. Florida courts repeatedly and patiently reviewed conflicting claims and consistently came to the same conclusions, based on the law. Federal courts repeatedly declined to intervene, again based on the law. When Florida politicians reached beyond their powers to try to impose their will on the case, the state Supreme Court found their action unconstitutional. When Congress and President Bush enacted an unprecedented power grab against state authority to handle such matters, the federal courts refused to surrender their independence. . . . Abstract terms such as separation of powers, checks and balances, and federalism really do mean something” (“Case’s passions test the mettle of a nation ruled by laws – and find it sound,” April 1). Judicial activism is a problem in American law and government today. But conservative commentators are wrong in blaming the courts for being “activist,” in the negative sense, in the Schiavo case. The courts acted responsibly and correctly, following the law and not their private feelings. Indeed, as Judge Birch concluded at the end of his concurring opinion, were the courts to intervene in the Schiavo case – ordering the reconnection of Mrs. Schiavo’s feeding tube and thus change Florida law -- as the Schindlers and Congress invited them to do, then the “activist judge” criticism would have been valid.
Judicial Activism Defined
Judge Birch defined an “activist judge” as “one who decides the outcome of a controversy before him according to personal conviction . . . as opposed to the dictates of the law as constrained by legal precedent and, ultimately, our Constitution.” That definition is fairly standard and nicely sums up what most legal analysts, conservative and left-liberal alike, mean when they refer to “judicial activism,” in the negative sense. They mean, essentially, that rather than follow so-called “neutral principles,” objective standards for interpreting laws and constitutional provisions, “activist” judges decide cases according to their own subjective values. Activist jurisprudence is result-oriented, focused on reaching the particular result, or outcome, that a judge desires in a particular case. Judicial activism, in this negative sense, needs to be distinguished from judicial review, the unique power of American judges to determine the constitutionality of laws. (The power of judicial review is rather unique to the American constitutional system. Under the laws of other countries, certain courts – usually called “constitutional courts” – have the sole power of reviewing laws passed by the legislature, assessing the constitutionality of those laws; but under the American constitutions, both state and federal, all courts have this power.) At the time the Framers drafted the U.S. Constitution, it was generally recognized that the “judicial power” vested in the courts included the power to decide whether laws are constitutional. That power naturally flows from the basic function of courts in American society to determine cases and controversies. As Alexander Hamilton noted in his classic explanation of the judicial review power in Federalist No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body [i.e., a statute]. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” Or as Chief Justice John Marshall put it, in an oft-quoted passage from Marbury v. Madison (1803), the famous decision in which the Supreme Court first declared unconstitutional an act of Congress: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case comformably to the law, disregarding the constitution; or comformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.” Of course, judges must follow the Constitution and thus disregard any law in conflict with it – not only because the Constitution, in our system of government, is “higher law,” the sovereign will of the people, but also because it defines and limits the legitimate scope of the powers exercised by all branches of government, including the judiciary. Judicial review is a legitimate power that courts have under our constitutional system. Judicial activism, however, is an abuse of this power, when courts decide constitutional questions for the wrong reasons. To help avoid improper judicial activism, the U.S. Supreme Court and other federal courts have long followed a policy of self-restraint that is commonly called the “political questions” doctrine. Under this doctrine, which is more properly called the nonjusticiability doctrine, courts have abstained from deciding certain kinds of questions, those that are “political” in the sense that they require judges to make policy determinations – making value judgments, or weighing various factors that are more properly considered by legislative bodies in their deliberations – determinations that judges are not equipped to make, either constitutionally or professionally. Another way of regarding “activist” court decisions as illegitimate is to consider them as exceeding the proper bounds of judicial power because judges have attempted to decide nonjusticiable “political” questions. Critics of controversial Supreme Court decisions throughout American history have accused the Court of being improperly “activist.” Since the middle of the 20th century, it has been mostly conservatives who have made this charge, especially in the wake of the supposed “liberal” activist decisions of the Warren Court (1954-1969). Richard Nixon in 1968 and again Ronald Reagan in 1980 were elected on platforms criticizing left-wing activist Court decisions and promising to appoint “law-and-order” judges. Indeed, when President Reagan’s Attorney General, Edwin Meese, announced that the Reagan administration would follow “a jurisprudence of original intention” in nominating judges to the federal bench, he was criticizing the liberal judicial activism of the Warren and Burger Courts as a “chameleon jurisprudence,” based on the changing values of particular justices on the Court rather than the text of the Constitution, interpreted according to its framers’ intent. Attorney General Meese’s criticism of left-wing judicial activism started a dialogue about originalism in constitutional interpretation that still dominates scholarship in constitutional law, jurisprudence, and legal history today. In recent years, however, as the Rehnquist Court has changed constitutional law apparently in a more decidedly “conservative” direction, left-liberals have been echoing conservatives in decrying judicial activism, accusing the Court today of being activist in a “right-wing” direction. In the modern debate over judicial activism, both sides are frequently wrong. Conservatives and left-liberals are equally guilty of misinterpreting the Constitution because they ignore the context of its provisions, as I have argued in my essay “Interpreting the Constitution Contextually.” They are also equally guilty of unjustly condemning as “judicial activism” those decisions of the Supreme Court and other courts they disagree with, and of failing to see true abuse of the judicial power – in other words, real judicial activism – in other decisions with which they agree. In other words, conservatives and left-liberals are equally blind to the problem of judicial activism, properly defined. One additional point needs to be noted. Although most decisions that are criticized as “activist” are decisions in which the courts strike down laws as unconstitutional, courts may be activist – in other words, they may violate objective principles of judicial decision-making – equally by upholding laws against constitutional challenge. Whether or not a decision is “activist” does not depend on its outcome but its methodology – the reasons on which a court bases its decisions – and thus a court abuses its judicial review power, by being “activist,” when it decides questions of constitutionality in impermissible ways, regardless whether it ultimately finds the law in question either constitutional or unconstitutional. Some of the most egregious examples of judicial activism, in the proper sense of the term, are cases where the courts have upheld laws they should have found unconstitutional.
Real Judicial Activism – Some Examples
Throughout American history, the U.S. Supreme Court has abused its powers by basing its decisions on improper “judicial activist” grounds. Here are some key examples:
The “original sin” in American constitutional law, when the Court upheld the constitutionality of the Bank of the United States under a broad interpretation of the power-granting clauses. Partisan politics trumped principle: Chief Justice John Marshall was an arch-Federalist, and the Bank was a Federalist program (the pet project of Alexander Hamilton) which, in the eyes of Federalists, helped the United States prosper. Yet, as Thomas Jefferson understood, no clause of the Constitution, correctly interpreted, gave Congress the power to charter a bank – yet alone create one with the monopoly powers of this Bank. Marshall’s rationale? “We must never forget that it is a constitution we are expounding” – meaning that we may forget that the Constitution’s basic purpose is to limit the powers of the federal government and instead may infer additional powers not found in its text! It was this decision, more than any other single decision by the Marshall Court, that prompted Jefferson to warn Americans about the dangers of “judicial despotism.”
Perhaps the most infamous Supreme Court decision, when a Court dominated by Southerners and Democrats decided that Congress could not exclude slavery from the western territories. For only the second time in U.S. history, the Court declared unconstitutional a federal law: the Missouri Compromise of 1820, which had prohibited slavery from the northern part of the territory added to the U.S. by the Louisiana Purchase. Led by Chief Justice Roger Taney, the majority of the justices thus decided a red-hot “political question” – and by siding with Southern slaveholders, the Court helped validate Northerners’ belief that a Southern “slave-power conspiracy” controlled the government. This belief, in turn, helped elect Abraham Lincoln and a Republican majority in Congress; and the Republican Party’s victories in the 1860 elections prompted states in the Deep South to secede. Thus did the Court’s judicial activism help bring about the Civil War.
In a 5-4 split decision, the majority of the Court upheld a Louisiana law giving one company a monopoly over the livestock slaughtering business in the New Orleans area. In its first decision interpreting the Fourteenth Amendment, the Court read narrowly the Amendment’s provisions, particularly its guarantee of “the privileges or immunities of citizens of the United States” – reading this provision (which was intended as the substantive heart of the Amendment) so narrowly as to make it virtually meaningless. Out of concern for federalism – fearing too broad an interpretation of the Amendment’s limits on state power might make the Court a “censor” over state laws – the majority of the Court thus gutted a key part of the Constitution. The dissenters, led by Justice Stephen Field, understood that the Fourteenth Amendment ought to protect “the natural and inalienable rights which belong to all citizens,” including economic freedom – “the right to pursue a lawful employment in a lawful manner,” under laws that equally affect all persons – and that grants of “exclusive privileges,” like the Louisiana law, clearly violated these rights. Eventually the majority of the Court will adopt Field’s broader view of the Fourteenth Amendment, but under its due process clause; the Court has yet to correct its erroneous interpretation of the privileges or immunities clause.
In the decision that marked the so-called “New Deal Revolution” on the Court, the majority upheld a Washington law imposing a minimum wage on women. The Court abandoned a 40-year series of precedents protecting “liberty of contract” as a fundamental right (one of those precedents, the Court’s 1923 decision in Adkins v. Children’s Hospital, had declared a similar minimum wage law in the District of Columbia to be an unconstitutional deprivation of both employers’ and employees’ rights); from this point on, the Court upheld virtually any law, state or federal, regulating business. This so-called “switch in time that saved nine” made irrelevant FDR’s Court-packing plan, for the Court stopped enforcing constitutional provisions that conflicted with New Deal legislation. (The death or retirement of each of the four dissenting justices, over the next several years, also allowed FDR to pack the Court with pro-New Deal justices through the regular appointment process.) Chief Justice Hughes’ opinion for the majority of the Court revealed the pro-New Deal policies that lay behind the decision: he unquestionably accepted the purported rationale for the minimum-wage law – “the health of women and their protection from unscrupulous and overreaching employers,” the “evils of the `sweating system,`” “the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living” – the same bullshit that proponents of minimum-wage laws assert today, to mask the laws’ real purpose and effect: excluding certain people (then, women; today, younger, unskilled workers) from the workplace.
Another part of the “New Deal Revolution,” in a case decided two weeks after West Coast Hotel, the same 5-4 majority on the Court upheld the National Labor Relations Act – thereby federalizing the law of labor and employment – under an interpretation of the Constitution’s Commerce Clause that was so broad it could empower Congress to legislate with regard to virtually any activity, even activities wholly intrastate, under the theory that the activities affected interstate commerce. Thus, the Constitution’s clause empowering Congress to “regulate Commerce . . . among the several States” became a “plenary” grant of power allowing Congress to regulate virtually anything, even non-commercial matters. Five years later, a Court filled by new FDR appointees added yet another interpretative trick to its Commerce Clause jurisprudence: the “aggregation principle,” by which it allowed Congress to legislate over noncommercial activities with minimal impact on interstate commerce (such as an Ohio farmer’s growing of wheat on his own farm for his own family’s consumption) because (the Court rationalized) such activities, multiplied throughout the U.S., “could affect the market” (Wickard v. Filburn (1942)).
In the third case comprising the troika marking the “New Deal Revolution” of 1937, the same five-justice majority upheld the Social Security Act, under a view of Congress’s taxation powers so broad that it empowered the federal government to do virtually anything so long as it involved the expenditure of tax dollars. These cases also marked the Court’s virtual evisceration of the Tenth Amendment as a rule limiting federal powers to those enumerated in the Constitution; the Tenth Amendment, rather than being the “foundation” of the Constitution (as Thomas Jefferson understood it), became a meaningless “truism,” as Justice Stone asserted in his opinion for the Court four years later (United States v. Darby (1941), upholding another major New Deal federal labor law, the Fair Labor Standards Act of 1938). As in the other 1937 cases, the majority of justices decided the case based on their pro-New Deal policy preferences (their unquestioning acceptance of anti-market economic theories rationalizing government control through regulations) rather than objectively following the text of the Constitution and accepted principles of constitutional law.
Contemporaneous with the pro-New Deal troika of cases, the Court adopted the rule of “selective incorporation” of the Fourteenth Amendment: in other words, it interpreted the Fourteenth Amendment’s protection of liberty, under the Amendment’s due process clause, to encompass only certain, selected liberty rights enumerated in the Bill of Rights. One of the “liberals” on the Court, Justice Cardozo, drew a distinction between those rights so important (“implicit in the concept of ordered liberty,” “of the very essence of a scheme of ordered liberty”) that the Court would apply them against the states, through the Fourteenth Amendment, and those rights that weren’t so important. Among the former, he classified First Amendment freedom of speech, press, and religion and Sixth Amendment right to counsel; among the latter, he classified the Fifth Amendment right to a grand jury indictment and the right not to incriminate oneself, as well as the Sixth and Seventh Amendments’ right to a jury trial. Thus, the Court upheld Palko’s conviction of first-degree murder in the Connecticut courts (Palko had been found guilty of second-degree murder in a jury trial; after the state supreme court ordered a retrial, he was convicted of the more serious crime in the second trial) – something that would not have been permitted in federal courts, under the Court’s interpretation of the Fifth Amendment clause protecting criminal defendants from “double jeopardy.” But, under Cardozo’s rationalization, the prohibition on double jeopardy was not so fundamental a right that its abridgment in state courts constituted a denial of due process, under the Fourteenth Amendment. By picking and choosing those rights he regarded as fundamental, Cardozo in effect was second-guessing James Madison and the other members of the First Federal Congress who adopted the Bill of Rights and who accordingly regarded all its enumerated rights as fundamental. Cardozo’s audacity, to my mind, is among the most egregious examples of judicial activism in U.S. constitutional law.
In a case famous for one of its footnotes, the Court adopted the double standard that still marks modern constitutional law: the Court fails to protect property and economic liberty rights (by upholding any law regulating business so long as it has some minimal “rational basis”) but more strongly protects certain rights preferred by the justices. What are those rights, to be protected by “more exacting judicial scrutiny”? As identified by Justice Stone, in Footnote 4, they include, in addition to certain rights guaranteed by the Bill of Rights, the rights to vote and to politically organize and the rights of religious and “discrete and insular” racial minorities. What’s the basis for this double standard? Not the text of the Constitution, but the personal preferences of Justice Stone (or, more precisely, Justice Stone’s law clerk, the probable author of the footnote).
In a case that starkly illustrated the need for presidential term limits – for it was decided by the “Roosevelt Court,” a Court filled with men appointed by FDR during his 13 years as president – the Court upheld President Roosevelt’s executive order relocating Japanese and Japanese-Americans in West Coast states to “relocation” camps (a euphemism for concentration camps). Justice Hugo Black, in his opinion for the majority of the Court, disregarded the exclusion order’s deprivation of liberty without due process (notwithstanding his recognition that by targeting a specific ethnic group, the order ought to be strictly scrutinized, under the Carolene Products footnote rule); instead, he deferred to the President’s decision because it involved national security during wartime.
Although the Court’s decision – that racial segregation of public schools violated the Fourteenth Amendment’s equal protection clause – was not by itself activist (for it could follow from an objective application of the law), the reasoning on which it was based was activist. Chief Justice Earl Warren, a politician (former governor of California) who came to the Court with no judicial experience, was motivated by political considerations: knowing that a decision ruling segregation unconstitutional would be controversial, especially in the South, he was determined that the Court should speak with one voice. To obtain a unanimous decision, his opinion for the Court had to be confined to public schools – for an objective application of the equal-protection principle to all laws mandating segregation, in places of public accommodation, for example, would not have been supported by all the justices – and to support his conclusion that segregated schools are “inherently unequal,” he relied on dubious psychological studies showing segregation’s detrimental effect on black schoolchildren.
One of the Court’s “obscenity” decisions of the 1970s, when the Court attempted to define “obscenity,” which it held exempt from the First Amendment’s protection of free speech. As I discussed in my previous entry “Supreme Nonsense—Part II,” the definition of obscenity is wholly subjective and disregards the plain meaning of the Constitution’s text, which demands that government pass “no law” abridging freedom of speech. Ironically, the so-called “obscenity exception” – the exclusion of erotic materials from First Amendment protection – was earlier sanctioned by the Court’s 1957 decision in Roth v. United States, in an opinion by Justice William Brennan, one of the “liberals” on the Court.
Anti-abortion activists regard the Court’s decision -- protecting as a fundamental right a woman’s freedom to abort her pregnancy during its first trimester -- as infamous, rivaling Dred Scott; and conservative scholars regard it as the epitome of judicial activism. The latter are right, but for the wrong reasons. Contrary to what conservative scholars believe, the Constitution does protect a personal right to privacy – it’s part of the liberty that ought to be protected by the due process clauses (see my discussion of Griswold v. Connecticut, below). Jurisprudentially, the problem with abortion is that it necessarily involves the conflict of fundamental rights, equally protected by the Constitution: the pregnant woman’s liberty right (her right to control her own body) and the unborn child’s right to life. Justice Harry Blackmun’s opinion for the Court balanced these two fundamental rights, along with a third interest of supposed equal importance (the state’s interest in protecting the life and health of the mother), and conveniently assigned them among the three trimesters of the 9-month human gestation period. This “balancing” approach to constitutional adjudication can be squared with neutral principles of decision-making (although the identification of “interests” invariably tempts judges to make policy determinations), but what can’t be squared with objective constitutional law is Justice Blackmun’s conclusion that viability marks the point at which the fetus is endowed with the rights of human being, including the right to life. Thus, in a part of the decision frequently ignored by both pro-life and pro-choice activists, Blackmun’s opinion allowed states to prohibit abortions altogether in the third trimester, beyond the point of viability (estimated by Blackmun at about 7 months, or 28 weeks – but now much earlier, thanks to advances in medical technology), because (he reasoned) in the last three months of pregnancy, the state’s interest in protecting the unborn child’s life becomes “compelling.” The definition of the beginning of human life – and hence, the determination of whether abortion is or is not “murder” – is a classic example of a policy determination that ought to be left to legislatures; and under our federal system, confirmed by the Tenth Amendment, ought to be left to state law. Thus, Roe v. Wade is activist because it begged the constitutional question, applying the Fourteenth Amendment’s protection of liberty and life to a situation where the Constitution delegated the contours of those rights to the states.
As I discuss in my previous entry “Supreme Nonsense—Part II,” the Court’s recent decision prohibiting the execution of persons under the age of 18 abused its legitimate power to apply the Eighth Amendment’s prohibition of “cruel and unusual punishments” and instead was based on nonjusticiable policy grounds.
Imagined Judicial Activism – Some Examples
Throughout American history, the U.S. Supreme Court also has decided many controversial cases by properly applying its judicial review power in a neutral, objective way; yet it has been criticized, unjustly, by conservatives or left-liberals for being “activist,” simply because the critics disagree with the Court’s decision and have misinterpreted its reasoning. Here are some noteworthy examples of imagined “judicial activism”:
Perhaps the most misunderstood decision in all U.S. constitutional history, when the Court declared unconstitutional a New York law setting maximum hours for workers in bakeries. The decision is the best known of a series of U.S. Supreme Court decisions, over a 40-year period (1897-1937) protecting “liberty of contract” as a fundamental right, part of the liberty protected under the due process clauses of the Fifth and Fourteenth Amendments. Critics of the decision, beginning with Justice Oliver Wendell Holmes in his dissenting opinion, have accused the majority of the Court of reading a libertarian political or economic philosophy into the Constitution – and this view has become so orthodox that “Lochnerizing” has become synonymous with judicial activism. But this is an unfair criticism that mischaracterizes what the Court was actually doing in its liberty of contract jurisprudence: enforcing a general presumption in favor of liberty by adhering to traditional limits on the so-called “police power,” the regulatory power of government. The Court properly held the maximum-hours provision of the New York Bakeshop Act to be unconstitutional because it was not a valid health law; rather, it abridged the freedom of employers and employees to bargain over the terms of their employment.
The Court’s controversial “school prayer” decision of the early 1960s declared unconstitutional, under the First Amendment’s religion clause prohibition of laws “establishing” religion, a state-mandated prayer in New York public schools. Religious conservatives assail the decision for “banning prayer from the classroom,” but the decision in no way limited the freedom of individual students from praying privately. Rather, the decision properly regarded the government’s action -- writing a prayer and requiring it to be recited in public schools -- to be a form of government “establishment” of religion prohibited by the First Amendment. In his opinion for the Court, Justice Black adopted Thomas Jefferson’s view of the Amendment’s religion clause, as mandating a “wall of separation between church and state.” Although, as many conservatives like to point out, those words do not appear in the text of the Constitution, Jefferson’s wall metaphor is a fair interpretation of the clause that gives real effect to its libertarian meaning: that religion is a private matter (a matter of individual conscience) over which government may not legislate in any manner whatsoever.
Another decision frequently assailed by conservatives, in which the Court identified the “right to privacy” as a fundamental right protected by the Constitution and therefore declared unconstitutional a Connecticut law prohibiting even married couples from using contraceptives, as a law abridging privacy rights. Justice William O. Douglas’s opinion for the Court – which derived the right to privacy from “penumbras,” emanating from particular rights guaranteed by the Bill of Rights – especially has been ridiculed by conservatives, as unabashed judicial activism; but in a jurisprudential sense, Douglas’s opinion is rather conservative, for it tried to ground the right to privacy – an unenumerated right – on certain enumerated rights, to give it an objective basis. The Constitution does protect unenumerated rights – it does so explicitly in the Ninth Amendment (which Justice Goldberg, in a concurring opinion in Griswold, preferred as the basis for privacy rights), and it does so implicitly in its broad protection of liberty through the Fifth and Fourteenth Amendment’s due process clauses. Indeed, the right to privacy as protected by the modern Court is the last remaining vestige of its protection of liberty of contract during the first third of the 20th century. If there’s anything “activist” about Douglas’s opinion for the Court, it’s not the protection of privacy per se but rather the limitations Douglas put on the right to privacy. He emphasized privacy only in the context of marriage, but the logic of his “penumbras” rationale ought to lead to a broad right of personal autonomy, not just marital privacy, with economic as well as non-economic aspects.
Democrats and their allies, in the media and in law school classrooms, have alleged that “right-wing” justices on the Court “chose” President Bush in the 2000 election. Thus, they claim, the Court’s decision in December 2000 exemplifies “right-wing judicial activism.” If one understands the facts and reads the Court’s decision, however, it’s apparent that the justices were simply applying the U.S. Constitution even-handedly to thwart an attempt by the Florida Supreme Court to change state election law, to help Al Gore steal the state’s electoral votes from Bush. The activism here was not in the U.S. Supreme Court but in the state’s supreme court, which was flouting the rule of law in order to achieve a desired political result. The justices of the U.S. Supreme Court – a majority of 7 of the 9 justices, including “liberals” along with conservatives – held that the recount ordered by the Florida Supreme Court (a hand recount in selected counties, without any uniform standard) violated the Fourteenth Amendment’s equal-protection clause. “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another,” the Court held. “The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.”
Justice Anthony Kennedy’s opinion for the Court in this controversial decision, overturning state laws criminalizing sodomy (oral or anal sex) as unconstitutional deprivation of liberty without due process, breathed new life into the Court’s protection of liberty under the Fifth and Fourteenth Amendments. Conservatives have assailed the decision as “activist” because they refuse to recognize that the due process clauses legitimately have a substantive application – and thus that the Constitution protects individual liberty, generally. But the decision that was really activist was the one that Lawrence overturned, the Court’s decision in Bowers v. Hardwick (1986), in which the majority of the justices upheld state sodomy laws under a rationale that can be fairly described as homophobic, based on an irrational fear of and prejudice against homosexuality. Justice Blackmun, in his dissenting opinion in Bowers, maintained that the majority failed to recognize “the fundamental interest all individuals have in controlling the nature of their intimate associations with others”; 17 years later, in his opinion for the majority of the Court in Lawrence, Justice Kennedy corrected this error by more fully recognizing the “liberty of the person.” Conservatives who assail this decision as standing in the way of the majority in society to legislate morality (as Justice Scalia argued in his bitter dissent) overlook the basic fact that the reason we have written constitutions, with their guarantees of individual rights, is to prevent such majority tyranny. When courts protect the rights of individuals against legislative attempts to impose a majority’s values on a minority, they’re not being activist: they’re doing their duty, enforcing the Constitution’s protections for the rights of individuals.
| Link to this Entry | Posted Monday, April 4, 2005 | Copyright David N. Mayer |
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