The Magazine

A View from the Bench

The unpersuasive case for judicial activism.

Dec 4, 2006, Vol. 12, No. 12 • By EDWARD WHELAN
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The Myth of

Judicial Activism

Making Sense of

Supreme Court Decisions

by Kermit Roosevelt III

Yale, 262 pp., $30

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.

Remarkably, the only decisions besides Plessy v. Ferguson (the 1896 opinion permitting segregated streetcars) that Roosevelt does label illegitimate are six rulings by conservative majorities from the past dozen years, including Bush v. Gore. And he is able to reach this conclusion only by abandoning his own deferential stance and by probing more critically whether "the justifications offered for those decisions . . . stand up to scrutiny." Even then, as to two of these cases, he states some 60 pages later that he only "tend[s] to think" that they were wrong.

Roosevelt's survey of cases provides no coherent framework for assessing judicial decisions. Instead, it shows only how infinitely malleable and unprincipled his approach to judging is, and how meaningless his test of legitimacy is. Roosevelt's criticism of the term "judicial activism" is equally uncompelling. He states his argument concisely: The concept of judicial activism can make sense, he says, only if "determining the plain meaning of the Constitution [is] relatively easy" (a proposition that Roosevelt himself says is "indeed true") and if that "plain meaning" is sufficiently specific to "tell judges how to decide individual cases."

Roosevelt asserts that critics of judicial activism believe both of these things. He's wrong on both points. Among the leading critics of judicial activism are proponents of "original meaning" jurisprudence, who hold that judges are to interpret the various provisions of the Constitution in accordance with the meaning they bore at the time they were promulgated. That original meaning will frequently diverge from the generalized "plain meaning" that Roosevelt posits, and there is certainly no consensus among originalists that determining the original meaning of constitutional provisions is "relatively easy."

To be sure, most originalists will readily recognize as constitutionally outlandish many of the "rights" recently invented by the Supreme Court. But the fact that easy cases exist does not mean that there aren't plenty of questions with no clear right answer.

More important, Roosevelt's assertions are simply irrelevant. The two points that, in fact, generally unify serious critics of judicial activism of various jurisprudential stripes are quite different from what Roosevelt imagines.

First, judges do not have authority to "overenforce" the Constitution. How is it legitimate for courts to develop and apply judicial doctrine that invalidates legislative enactments that are not, in fact, unconstitutional? Second, far from believing that the Constitution always provides clear, right answers, critics of judicial activism maintain that, on those questions to which there is no clear right answer, judges have no authority to override the political process. Thus, Roosevelt's purported demonstration that many controversial cases have no right answer offers no response to critics of judicial activism who ask: On what basis, then, may courts in such cases trump the result that representative democracy has produced? Remarkably, Roosevelt is blind to these questions.

He is, to be sure, animated by an admirable sympathy for the difficult job that judges have, but that sympathy is not balanced by an equal regard for the role of America's citizens. Roosevelt condemns "loose talk of judicial activism" as "poisonous stuff," and it is certainly true that the "judicial activism" label is frequently misused by some on the left and right to signal political dissatisfaction with results in particular cases. But the narcotic that Roosevelt would administer to the body politic is far more lethal.

When judges override a legislative enactment, citizens have the right to demand that the judicial decision be right--and that a decision that usurps the political process be overturned. No citizen should be expected to roll over and play dead merely because that decision is a plausible (but not correct) application of a plausible (but not correct) understanding of a constitutional provision.

As Abraham Lincoln put it, "the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Roosevelt could also learn from comments that another president--his own great-great-grandfather--made (during wartime, no less) in defense of a citizen's right to criticize the president. As Theodore Roosevelt made clear, his comments apply fully to other important "public servants," and I therefore adapt them:

It is exactly necessary to blame [a judge] when he does wrong as to praise him when he does right. Any other attitude in an American citizen is both base and servile. To announce . . . that we are to stand by the [judge], right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.

Edward Whelan is president of the Ethics and Public Policy Center.