Judicial Activism and When Its Good

>> Sunday, May 31, 2009

The activist v. restraint debate has existed in the legal and political worlds since the term judicial activism was first coined, according to Keenan Kmiec in THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM", by Arthur Schlesinger Jr. In 1947, Arthur Schlesinger wrote an article about The Supreme Court of the United States for Fortune Magazine examining the nine justices and placing them into three camps, an activist camp, restraint camp, and the middle ground. What follows is a discussion of judicial activism and when it is appropriate.

Schlesinger via Kmiec,

This conflict may be described in several ways. The Black-Douglas group believes that the Supreme Court can play an affirmative role in promoting the social welfare; the Frankfurter-Jackson group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.

You can see right off the bat the problem in the outlined dichotomy. In this conception of what constitutes a non-activist court is clearly one that forgoes its responsibility as a branch of government. The courts and the Supreme Court in particular is supposed to be a a third co-equal branch of government. In the conception of activism outlined by Schlesinger the court is abdicating its role as a check on the other branches of government. When Schlesinger writes about, "the limited place in the American System" he is misstating the proper role of the court into something less than it has ever been. The Court has been a powerful and key player in American History since Marbury and for Schlesinger to view the Courts role as limited seems to be rather revisionist.

Kmiec's exploration of the origins and meaning of judicial activism illustrates an important flaw in the conception of Schlesinger's judicial activism. A lack of precision and metrics for the term.

Schlesinger's article contributes to legal scholarship and popular debate as the first significant commentary on "judicial activism." Schlesinger suggests the layers of the clash: unelected judges versus democratically enacted statutes; results-oriented judging versus principled decisionmaking; strict versus creative use of precedent; democratic supremacy versus human rights; law versus politics; and other equally fundamental dichotomies. Yet, even this initial effort exhibits some of the symptoms of the classic malady that has infected modern discussions of judicial activism. Schlesinger fails to define his terms with precision. For example, would Bush v. Gore or Roe v. Wade qualify as "judicial activism" according to Schlesinger? If so, why? Because they (arguably) exhibited a lack of deference to the political branches? Because they were (arguably) departures from precedent? Because they (arguably) qualified as judicial legislation? Or perhaps because they were (arguably) result-oriented? Schlesinger never explains what characteristic would make a decision "activist." Instead, he ascribes so many attributes to the Judicial Activists and the Champions of Self Restraint that it is impossible to determine which ones are necessary, sufficient, or superfluous. Of course, this line of questioning is unfair: "Judicial activism" had no established (or competing) definitions when Schlesinger used it. Nevertheless, to the modern eye, the ambiguity in Schlesinger's article is frustrating.

This flaw has been transmitted to almost every general public discussion of what constitutes judicial activism. This is why the phrase is often taken to be without any meaning and to be a simple stand in for a decision that one party doesnt like. I think the problem may lie in the fact that the term "activism" has a connotation other than the court simply acting. It would be easy to divide a court into instances when they act and instances when they dont and call one activist and the other restrained. This misses the point though. What i believe is the easiest and most accurate understanding of what constitutes "judicial activism" is when a court enacts a policy that runs counter to general public preference and trend of society. Is that nebulous and vague? Hard to measure? maybe. Judicial Activism is essentially when the court stands in the way of the public moving law or policy in the direction they wish it to go, contrary to the felt necessities of the time.

By this i dont mean that every time the Court invalidates a legislative action they are being activist. I think it is too narrow and naive to hold that every act of the legislature or elected officials is the true will of the people. The public doesnt know and doesnt care about most legislation. Not to mention that the public is often unhappy about the influence of special interests in the legislative process. However, sometimes that will is clear and the court will violate it. I think the Leadbetter case is a good example of activism in that the Court clearly went against the intent of congress to provide protection for women against discrimination in pay and that decision was invalidated by a new Law from Congress. It is also possible for the court to be activist when it doesnt invalidate legislation the public disfavors.

Because the activist concept relies on the reaction of the public it is inherently difficult to gage. The best way to see whether the court is running against the public might be to poll. It seems rather ridiculous to take public opinion polls about the Court but the main reason for judicial restraint is supposed to be the maintenance of the Courts credibility as an institution. What better way to see if credibility exists than to ask people? Of course people probably wouldnt even know enough to answer such a poll unless the court was making unpopular decisions. Otherwise no one would care enough to publicize it.

Kmiec details a different perspective on what activism is. He explores the disregard of precedent as a form of activism. He also looks at so called judicial legislation and the possible activist aspects of that. For this he lloks at the Warren Court and its expansion of rights,

Critics of the Warren Court have often voiced Justice Black's concerns. Even admirers of the Warren Court concede that it was activist in this sense. As Gary Schwartz put it, "In its constitutional rulings, the Warren Court was the paradigm of judicial activism." However, many of the Warren Court decisions most often labeled as judicial activism have gained acceptance. For example, Miranda v. Arizona, which created a mandatory warning that police must give to all suspects upon arrest, is generally accepted by the public and the police, a fact cited in its reaffirmation by the Supreme Court itself in United States v. Dickerson.

Cases like Miranda serve as reminders that whether a case is "activist" may not explain whether or not it is a good decision, when one's definition of "good" is based on other criteria. Individual cases can result in favorable consequences or set desirable precedents despite being improper exercises of the judicial function. Thus, one problem with using "judicial activism" as a pejorative, as critics of the Warren Court often do, is that it confuses the issues. Using "activist" as a substitute for "bad" elides important differences between the two labels; it fails to elucidate the specific ways in which a judicial opinion is improper, harmful, or wrong.

Kmiec clearly points out the problem with the contemporary understanding of activism. The Warren Court was activist in the sense that they did things. They "acted" however the decisions they made are often quite popular and important to contemporary society. The Warren Court was discovering policy supported and in line with public will and desires. At the very least the Warren Court, if it was activist under my conceptual framework was activist in the area where it is not only OK to be activist but where activism is essential-- civil rights and liberties.

Schlesinger himself had this same feeling that activism, going against society, was ok to protect rights.

After describing these opposing factions, Schlesinger takes sides. While he sympathizes with the Black-Douglas wing of the Court, he perceives a threat to democracy inherent in their position, and ultimately prefers to limit "judicial activism" to civil liberties cases.

Kmiec includes a very illustrative quote on the idea judicial activism in regards to civil liberties and rights.

Alfred L. Scanlan offered similar praise for Justice Murphy's judicial activism in civil rights issues, answering the criticism that such activism is undemocratic by replying,

We sanction the decisions of the rule of the majority when they come from the duly and democratically elected representatives of the people. When that majority will tries to undercut or impair the basic principles upon which it rests, namely, the free play of opposing views, practices, parties, etc., then the Court, as guardian of the Bill of Rights, must step in. We will not tolerate democracy to be destroyed in its own name. Justice Murphy grasped that. The label of "judicial activist" is unmistakably a compliment in this context, reflecting a belief that one ought to aggressively employ judicial review to safeguard the rights upon which democracy is predicated. Scholars sometimes referred to Justices Brandeis and Cardozo in much the same way. For example, a 1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who saw in the courts a powerful instrument to be grasped by the people in ameliorating social and economic conditions."

This is why i like my definition of activism. Where is it ok to go against the will of the people? When that will is intended on rending apart the rights of their fellow citizens or people. In cases where the Court is the last vestige of protection for the oppressed should the court simply say that oppression id ok as long as it is bipartisan? no. Kmiec proposed a hypothetical where a law is passed that establishes a religion. This law may be the will of the people but it clearly violates a right in the constitution. It should not be differed to, will of the people or not.

The purpose of our legal system is to do justice. Should courts allow clear injustices to proceed because to prevent them would be activist? As long as they act with full public backing courts may act without fear of losing their legitimacy as institutions or destroying the stability and predictability of law.

My view is heavily result oriented in that the reasoning and manner are not considered as too important. This stems from my attempt to work from the contemporary public debate and not the purely academic debate. Prof. Green who i link below had this to say about results oriented views of activism

Second, the view that activism means any undesirable result is even less plausible. Yet when commentators use the term “activism” without any explanation, it may seem that judicial results drive their rhetoric. If activism were defined to mean undesirable consequences, then the term would add nothing to straightforward conversation about the policies at stake. If judges were evaluated solely on their decisions’ political desirability, then the concept of judicial activism might be irrelevant. Whatever else judicial activism means, it is tied to the practice of judging; thus, the term must be tied not just to results, but also to appropriate judicial methods.

My view does actually take this into account. The public has some idea about how judges should decide cases. They have an understanding that precedent is important and can be controlling. If the judge goes around disregarding it, even if the result is a popular one, the public will may still run against that decision because it disregards precedent. Essentially the public is not entirely about the ends justifying the means. Judicial nominalism is not likely to be supported even if the results would normally be popular or good. My view is not relative to the "goodness" or "badness" of the outcome but rather whether it runs against what the public desires, in outcome or method.

for more excellent reading on th history of judicial activism download the paper available here by CRAIG GREEN Associate Professor of Law, Temple University.


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