NOVEMBER/DECEMBER 2010
Acting Out
A stalled economic recovery. The airwaves filled with demagoguery about important constitutional issues. A president who chides the Supreme Court for striking down a major piece of federal reform legislation. And, in response to charges of a pro-corporate tilt on a Court with a narrow conservative majority, Justice Roberts defends the Court’s intervention with the bland claim that judges do nothing more than “lay the article of the Constitution which is invoked beside the statute which is challenged” in order “to decide whether the latter squares with the former.”
2010? 1936. That mechanistic image of the judicial process was the handiwork of Justice Owen Roberts, responding to critics who complained that the Court was overriding New Deal economic legislation on the basis of its own political preferences. Current Chief Justice John Roberts would deflect such charges of “judicial activism” —the idea that judges improperly strike down democratically enacted laws according to their own moral and political convictions—by appealing to the metaphor of an umpire calling balls and strikes.
Indeed, the phrase “judicial activist” (or “activist judge”) is so frequently used that it has come to exemplify what George Orwell described in the 1946 essay “Politics and the English Language” as a term with “no meaning except in so far as it signifies ‘something not desirable.’” Consider how it has been employed in recent judicial-confirmation hearings. Conservative senators who worried that nominee Sonia Sotomayor would be a judicial activist pointed to her appeals court decision in Ricci v. DeStefano, in which she had refused to override employment policies adopted by the democratically elected government of New Haven. A year later the National Rifle Association announced that it would oppose Elena Kagan’s nomination because she might not be activist enough—her record suggested to them that she would uphold laws restricting gun possession. Meanwhile, liberal senators spent the hearings excoriating the activism of the conservatives on the Court, who had voted in Citizens United v. Federal Election Commission to strike down certain federal restrictions on corporate involvement in the election process.
The consensus that judges must refrain from imposing their personal beliefs goes back at least to Alexander Hamilton’s Federalist No. 78. Hamilton described the judiciary as the “least dangerous” branch because it
has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
We expect judges to be impartial and independent. That is why federal judges have life tenure. But we also demand that they respect democratic choices. They should enforce the policy decisions of the political branches—local and federal—unless the Constitution commands otherwise.
It’s that “unless” that causes the difficulty. The Constitution is the “supreme Law of the Land,” so, faced with a federal, state, or local law or policy that violates the Constitution, the judge must act. Judges would violate their oaths of office if, for example, they sat back and allowed the government to put people in jail for engaging in constitutionally protected activity (remember how the Commonwealth of Virginia threatened Mildred and Richard Loving with imprisonment for marrying across racial lines?) or permitted local officials to adopt policies that undermined the federal government’s exercise of its constitutional authority (think about Arizona’s ongoing attempt to adopt its own immigration policy). At the same time, judges equally violate their oaths of office if they strike down properly enacted laws because they think those laws are unwise or contravene their personal moral or religious codes.
The question is not whether federal judges should strike down popularly enacted policies, but when.
The consequences of bold judicial action can be awful. In Dred Scott, for example, the Court declared that black people could never be considered citizens and struck down Congress’s ban on slavery north of the 36th parallel as an unconstitutional denial of slaveholders’ property rights. This was one of the lowest points in the Court’s history. That said, some of the Court’s greatest triumphs involved bold intervention: “one person, one vote,” now a bedrock constitutional principle, was judicially imposed on the nation less than 50 years ago by a set of decisions rightly called the Reapportionment Revolution. And some of the Court’s greatest mistakes came when it showed timidity. Consider the turn-of-the-century decisions in Plessy v. Ferguson and Giles v. Harris, in which the Court’s passivity before, respectively, Louisiana’s segregation ordinance and Alabama’s disenfranchisement statute gave the green light to Jim Crow laws. To riff on Barry Goldwater, vigor in the protection of constitutional rights is no vice; restraint in the face of constitutional violations is no virtue.
These days, when it comes to accusations of judicial activism, the favored conservative target is the Warren Court (1953–1969). Yet most of its decisions were not directed at Congress, but at state and local policies—the South’s adherence to Jim Crow; Connecticut’s refusal to allow married couples to use contraceptives; Florida’s refusal to provide lawyers to indigent defendants—that departed from a national consensus about constitutional guarantees of liberty and due process. By contrast, the Rehnquist and Roberts Courts have struck down more acts of Congress per year than any other Courts in our history. And the most trigger-happy justices have been the conservatives.
The question is not whether federal judges should strike down popularly enacted policies, but when. This question has no mechanical answer. So let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all.
And when we have that discussion, let’s bear in mind that obligations of constitutional fidelity do not stop at the bench. Judges would be less busy if policymakers took their constitutional responsibilities more seriously. Public officials—national and state; judicial, executive, and legislative—take an oath to support the Constitution. Unfortunately, many fail to take that oath seriously, and laws and policies are adopted out of political expediency by legislators who know that the courts will strike them down. Thus Senator Arlen Specter voted in favor of the Military Commissions Act, which sharply limited the right of Guantánamo detainees to challenge their continued confinement, and then turned around and urged the Supreme Court to strike the Act down, calling it “anathema” to what he acknowledged to be “fundamental” constitutional guarantees of liberty. Similarly, local legislators pass ordinances denying undocumented individuals the right to live or to work in their communities, despite the fact that the Constitution clearly grants control over immigration to the federal government.
Politicians have constitutional responsibilities, too. And if they showed more restraint, judges would not have to intervene so often.
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About the Author
Pamela S. Karlan is Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School.
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But more important is that she gets that everyone on the Court, being a human as opposed to a law-spouting automaton, has some notions about how "things should be." Invariably, tenured judges, unaccountable to anyone but each other, are going to try to push their weight around. The framers of the Constitution, who designed the Court, understood this. That's why they decided there would be nine justices rather than one.
No judge considers him/herself an activist. They all think they're applying the test of constitutionality and comportment with precedence. But if it were this simple, we wouldn't need judges. Any chump could tell you whether a law is acceptable.
Judges ultimately follow their consciences. I'd sooner blame a bird for flying than a judge for having an opinion.
Judges have no discretionary powers to "intervene". Intervention is reminsiscent of an irregular verb (e.g. I explain but you argue). That is ultra vires. If they want to intervene then let them hit the trail and get voted to the legislature.
But you get what you deserve in a polarized political system.