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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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: