Are the Courts Too Deferential?

Given the constant talk about the Court, the proper judicial philosophy etc. i came upon this oped in the WSJ that makes an interesting point and one that i happen not to have a terrible problem with -- that the courts are too deferential to congress. Its a rather interesting argument and one not heard too often and because of this it should be considered. The idea of "activist judges" has become somewhat received wisdom among conservatives. I think though that looking at this piece demonstrates the problem with a Court that isnt deferential.

The opening three paragraphs actually set the stage for an intersting discussion.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

People not familiar with SCOTUS history or US history in general might not understand exactly what Mr. Rowes is complaining about here--the end of the Lochner Era.

The Lochner era is considered one of the most embarrassing and troubling periods of the Court. The focus of the Lochner era was economic liberty, the freedom to contract. Basically the Lochner era court used formalistic reasoning and flawed premises to invalidate a great number of economic regulations dealing with the growth and industrialization of America. Child Labor Laws, Minimum Wage Laws etc. were struck down as being outside the power of Congress to regulate. It favored the wealthy and entrenched business interests over the workers.

The problem with striking down these laws dealing with economic regulation is that they were needed as society advanced and industrialized. Eventually when the US ran into the depression the need to take massive, coordinated national action in the economy ran into the Lochner court. This gave us the Roosevelt Court Packing plan. The actions of the Court against the new deal policies almost cost the Court its credibility and power.

since that point in time the Court has generally been wary of asserting such broad authority against congresses ability to regulate the economy. Mr. Rowes' argument is a libertarian based assertion that we should go back to the lochner era. This position isnt one that is too popular. Does Congress go to far in some cases? possibly. Mr. Rowes cites the incredible power given to the treasury secretary under TARP as a case where the SCOTUS should invalidate an act of congress. While i share his concerns about the power alloted to the TS under TARP that presents a perfect case for why Courts are so reluctant to step in.

The TARP bill and how best to handle the economy was a heavily debated and much publicized political and economic debate. The final bill was the result of much political wrangling. For the Court to step in and say sorry, this may be a good way to do things but we think its unconstitutional would be very tough. His case for why its unconstitutional is that it violates congresses duty to control the purse. I think that this would be a very hard sell to make absent an accompanying delegation clause argument which Rowe doesnt have. He wants the unelected Court to step into a giant political fight between elected officials in two other branches of government where it isnt fully competent and nobody has sued. I dont see it happening nor do i think it really should. The Court has learned all about the problems in setting limits on the commerce clause, which is another clause Mr. Rowes doesnt deal with.

His second example is hardly better.

In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.

Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.

a big reason we have licensing is not to prevent people from engaging in jobs they arent qualified for. Its a quality control measure. Licensed personnel are supposed to be a signal that the people you are hiring are competent and abide by predictable standards. Does it drive up costs? probably. By allowing quality to distinguish itself it allows quality to charge more. Without proper signaling the quality wouldnt be able to compete because it takes greater effort and investment to be quality. Investment that goes unrewarded when anybody can claim to be as good and nobody can tell the difference initially.

Mr. Rowes piece also focuses on the Libertarian concerns of property and the economy without mention of civil rights. This is an area i myself believe that the Court should assert a bigger role. Mr. Rowes may agree with me. I think the distinction between acting in a counter majoritarian fashion to protect civil rights and liberties presents a better base for argument than property and the economy. Thats a full post in itself. While we may agree that the Court should be more assertive in pushing back against congress and the president, i think i have shown that the places Mr. Rowes advocates, at least in his Op-Ed, are not the ones we really need to see it.

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Judicial Activism and When Its Good

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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A Liberal on the Court

Is it too much to ask that President Obama place and actual liberal on the SCOTUS? Since the end of the Warren Court the court has been shifting rightwards slowly but surely eroding protections established under Warren. The current Court has a strong rightward lean with Scalia, Thomas, Alito, Roberts and often Kennedy join for the majority, as they did in DC v Heller. In light of this the replacement for Souter is not going to be able to swing the court to the left by a significant margin. However, the value of ability to write dissents and to stand solidly in opposition to Alito et al cannot be understated. In light of this i would encourage President Obama to stand firm against the bipartisanship crowd and nominate a solid and dependable liberal to the SCOTUS.

Here is the quote from the transcript of Obama's response to how he views the selection of supreme court justices during the primaries.

Now with respect to the bench, I think you are exactly right, we have to have people with the intellectual qualifications and academic credentials to perform. But, that can’t be the only criteria. We have generally, lately, drawn only from the academic areas. And, some of our best justices have been people who know a little bit about how the world works; know what it looks like outside of a court. Because part of...especially when you get to the highest levels, the Supreme Court, and I taught constitutional law for ten years. 95% of the cases that come before the Supreme Court or the appellate courts are actually pretty easy to resolve. A lot of these cases are cases that where there’s a clear statutory, you know, there’s clear language that tells you what the law is, or there’s clear precedent that tells you what the law is, and Scalia and Ginsburg will agree on the interpretation. And, those cases usually get washed out. The cases that we pay attention to, that we care about are the 5% of the cases, or the 1% of the cases, and what makes them hard cases, is because they’re conflicting values. It’s not just that they’re, its right and wrong, its, there might be two rights or two wrongs and you’ve got to try and resolve them. And there, the question is, what’s in the persons heart and their gut, not just what’s in their head. And what I want are people on the bench, who have enough empathy enough feeling for what ordinary people are going through, that they’re not just in a bunch of abstractions up there, but they’re focused on, you know, what does this really mean. Brown vs. Board of Education is a great example, I mean, the truth is; is that the science that showed that black children going to segregated schools was bad for them, the sociology that was used was imperfect. I mean, it wasn’t really perfect science, but people on that bench, people like Earl Warren and Brennan and others, they understood you know what, what’s really happening is that this is part of a stigmatization of blacks, and so you cant pretend that there is anything like separate and equal, its inherently unequal, that’s a statement of values, and a statement of morality, and a statement of who we are and what we believe in.And, I want my judges to understand that part of the role of the court is to look out for the people who don’t have political power, the people who are on the outside, the people who aren’t represented, the people who don’t have a lot of money, who don’t have connections, that’s the role of the court. And yes, I want women on the court absolutely.

The allusion to brown is an important one. If Obama truly identifies with the way that the Warren Court decided Brown it presents an important insight into the way he understands the role of the judiciary. This response indicates a view that the court is an instrument of social justice with ability to reshape policy to protect the interests of the traditionally disadvantaged groups in society. Obama is advocating for a judicial awareness that the decisions made by the SCOTUS really impact the lives of people. By referencing Brown and the ability to pierce the evidence and facts presented in the case Obama seems to support a legal realist point of view.

Obama's discussion of empathy and understanding is actually encouraging because it takes us away from an understanding and framing that the right has successfully propagated for years, the "activist judges" meme. Activist judge is simply rightwing code for liberal. A judge who asserts the rights of the oppressed based on the principles illustrated in the constitution applied to the real world is an activist. A judge who ignores the real world effects, the practicalities, of the decisions and the concept of justice is one who "adheres to the constitution". Liberals lose the framing battle on the courts because they are afraid to stand up for their ability to interpret the constitution. They essentially cede the argument that scalian textualism is the true form of interpretation.

This is why i find it somewhat disheartening to see reports like this, Obama May Seek Out Centrist to Replace Souter on Supreme Court

Senators from both parties said the Democratic president should avoid filling the vacancy with an “ideologue.”

“I don’t like to see an ideologue of either the right or the left,” Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, said on CNN’s “State of the Union” today. “I don’t think we’re going to have one.”

Obama “probably understands he is going to have more than one appointment,” said John O. McGinnis, a conservative legal scholar at Chicago’s Northwestern Law School who served in the Republican administrations of Ronald Reagan and George H.W. Bush. “It may well be he doesn’t want to make a very divisive appointment immediately given that he is pursuing so many other matters.”
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Choosing a relative moderate would square with Obama’s campaign promise not to seek Supreme Court “activism,” while leaving open the possibility of a bolder nomination for a future vacancy. It would also help ensure an easy Senate confirmation, burnishing Obama’s centrist credentials while he seeks support for a health-care overhaul and other priorities.

Republican Senator Richard Shelby of Alabama said on CNN today it would be “good for the country” if Obama appoints “a pragmatist, someone who is not an ideologue.”

“I think the criteria should be to follow the law, not to make the law,” said Shelby.

Do i need to say how foolish listening to Orin Hatch and Richard Shelby about SCOTUS appointments would be? The other ridiculous notion in this quote is the idea that Obama should pick a middle of the road person this time and save the possible liberal for later. Cause, like, you know he has so much on his plate and he will need the political oxygen and plenty of other Steak Sauce esque prattle. The GOP is going to try and block whoever it is that Obama nominates. They havent voted for anything he has proposed so far so why start now? Who really believes the GOP wouldnt take a watered down nomination and try and block it anyway? They have a anti-roe litmus test and i cant imagine Obama nominating someone who would want to repeal that precedent. What this article is all about is pushing against an actual liberal on the court.

As encouraging as Obama's initial statement about empathy and an understanding about the real world effects of judicial opinions his follow up in an interview last year was disappointing,

In a 2008 interview with the Detroit Free Press, Obama identified Marshall and other liberal icons of the court as "heroes of mine." But he added: "That doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

At other times, Obama suggested that he was inclined to name moderates in the mold of President Clinton's choices of Ruth Bader Ginsburg and Stephen G. Breyer -- not known as bold advocates of liberal jurisprudence in the way Scalia is viewed on conservatism.

The Court needs a champion of the rights established by the Warren Court. The center of the current court is very far to the right. If Obama nominated someone to be in that center that would only increase the erosion of rights that Obama asserts admiration for. It is interesting that most people laud the rights enshrined by the Warren Court but wont approve of the way they were arrived at. If your philosophy couldnt have decided Brown v Board against the segregationists thats a problem. The Court makes policy and there is no way around that, pretending that a moderate centrist is going to deliver on the policy Obama claims to favor isnt wise.

A young brilliant counter to Scalia and Alito is whats needed, someone who can articulate a liberal judicial philosophy. Lani Guinier explains,

Depending upon the choice President Obama makes — Justice Souter’s legacy could be the opening up of the court to a pragmatic politician who understands Justice Brennan’s “rule of five” for a majority opinion. However, President Obama’s nominee might be even more influential if she understands her power as a dissenter and uses her voice on the court to mobilize the people themselves to change the meaning of the Constitution over time.

We’ve seen this on the right, where Justice Scalia plays an active role in creating the philosophical ground upon which citizens can advance alternative interpretations of the constitution of their own.

In his dissent, for example, in Lawrence v. Texas , which found the Texas sodomy statute unconstitutional, Justice Scalia was in conversation with a conservative constituency.

Within a few days of having published his dissent in that case, conservative activists were circulating copies of it. We have also seen it on the left, with Justice Ruth Bader Ginsburg issuing several forceful oral dissents on gender issues, including one in the pay equity case of Lilly Ledbetter.

Justice Souter joined Justice Ginsburg in dissenting from the majority opinion, which threw out Ms. Ledbetter’s suit because she did not file it as soon as she received her first shortchanged paycheck. Yet Ms. Ledbetter, an Alabama grandmother, did not learn of the pay disparity she suffered until someone put an anonymous note in her box. Moreover, as Justice Ginsburg explained, women in an all-male work force are often scared to make waves.

Justice Ginsburg’s forceful and passionate dissent helped frame the issue. Her plain language spurred activists, politicians and the Obama campaign to push Congress to change the law. As a result of this mobilization, the first major piece of legislation signed by President Obama, the Lilly Ledbetter Equal Pay Act, overruled the court majority’s cramped decision.

With conservatives strongly positioned in the majority on the court, President Obama’s nominee will likely have to show her judicial philosophy primarily in dissent. President Obama should appoint a jurist who, like Justices Ginsburg and Scalia, speaks directly to the American people in a voice they can understand.

Obama cannot afford to play it safe on his first pick because there is no guarantee that he gets to make another pick even if Stevens is 89 years old.

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