A View from the Bench
The unpersuasive case for judicial activism.
Dec 4, 2006, Vol. 12, No. 12 • By EDWARD WHELAN
The Myth of
The term "judicial activism" carries a powerful stigma. Over the past four decades or so, the courts, especially the Supreme Court, have imposed the left's agenda on a broad range of issues--abortion, the death penalty, pornography, homosexuality, criminal rights, and a secularized public square, to name a few. Many critics of judicial decisions on these matters emphasize that the rulings are not merely erroneous, but operate to deprive Americans of their basic political right to establish, through their elected representatives, the policies that ought to govern the nation, their states, and their communities. The shorthand label "judicial activism" captures and conveys this unconstitutional judicial usurpation of the democratic process.
Contending that "judicial activism is an empty epithet," Kermit Roosevelt III, professor of law at the University of Pennsylvania, has written a book earnestly arguing that judicial decisions ought, instead, to be assessed against his proposed benchmark of "legitimacy." Although The Myth of Judicial Activism is, for the most part, evenhanded, that virtue cannot compensate for its deep conceptual flaws. Roosevelt fails to provide what his title and subtitle promise: He neither exposes judicial activism as a "myth" nor provides a useful alternative means of "making sense of Supreme Court decisions."
In presenting his standard of legitimacy, Roosevelt begins by identifying judicial "doctrine" as the set of rules that judges create to implement the meaning of the Constitution's provisions in particular cases. Doctrine, he observes, is distinct from (and does not completely correspond to) the actual meaning of the Constitution. Sometimes doctrine will "under enforce" the Constitution: Judges will fail to give constitutional provisions their full meaning. Other times doctrine will "overenforce" the Constitution: Judges will invalidate government actions that are not, in fact, unconstitutional.
Roosevelt outlines the various factors--"institutional competence," the "lessons of history," "defects in democracy"--that he believes counsel for or against judicial deference to governmental action: that is, for underenforcement or for overenforcement of constitutional guarantees in particular cases.
His core claim is that "a decision is legitimate if it starts with a plausible understanding of constitutional meaning (seldom a deeply controversial issue [!]) and creates sensible doctrine to implement that meaning (a question that typically comes down to [the deference factors])." Lest this anemic standard be thought to have some vigor, Roosevelt declares that there is no objective answer to the question whether any combination of factors justifies a particular level of deference. Thus, "to say that a decision is legitimate, as I have defined the term, is not saying much. It does not mean that the Constitution requires the result the Court has reached. Other approaches might also be legitimate [and] might be better."
The bulk of this book--Roosevelt's guided tour of controversial Supreme Court cases--confirms that his legitimacy test doesn't say much. As he puts it, "In most of the cases I discuss, the Court's decision is legitimate, but a decision going the other way would be legitimate as well." Indeed, it is nearly impossible for any Supreme Court decision to fail Roosevelt's test.
Roe v. Wade, he says, is a "woefully unconvincing opinion," but it is "legitimate" because "the argument for nondeferential review" of abortion legislation--Roosevelt's own argument, that is, not Roe's--"is fairly strong." Some of the Court's Establishment Clause decisions "may be wrong," he says, but they "follow plausibly from a plausible understanding of constitutional meaning." Korematsu, in which the Court declined to invalidate the government's detention of American citizens of Japanese ancestry during World War II, is "probably legitimate." Lochner, the 1905 decision striking down a state law setting a ceiling on the number of hours a baker could be required to work, was "not illegitimate" since the Court's "particular conception of constitutional meaning" had already been "proved . . . false" but was nonetheless "plausible."
Even Dred Scott elicits from Roosevelt only the tepid assessment that it was "probably" so wrong as to be "unreasonable," but he hastens to add that even unreasonable error does not suffice to render a decision illegitimate.