Even after reading Orin’s thoughtful post on the various meanings of “judicial activism,” I still believe the term is unhelpful. Or rather, it is too helpful to those who would criticize a judicial decision with which they disagree without assuming the burden of explaining what that decision is legally defective. In short, “judicial activism” is a highly useful epithet for critics on the Right and Left to condemn a judicial opinion on “process” grounds without needing to engage in a legal analysis of the opinion’s merits. This comes in very handy when the intended audience would not understand a legal analysis, or when the commentator is incapable of providing one. (Which is why Orin’s definition #3 is rarely what is meant when the term “activism” is used.)
I am old enough to remember way back in 2002, when the legal professoriate was busy criticizing the Rehnquist Court for its conservative judicial activism for its decisions in such cases as United States v. Lopez and United States v. Morrison. Now, of course, we are told by the defenders of the constitutionality of the ACA that these cases are hallowed precedents that provide the only limits on the commerce power of Congress, lest they have to defend the untenable position that there are no limits whatsoever.
Now that the subject has predictably arisen again in the context of the ACA challenge, I thought I would reproduce the opening and closing passages of my 2002 essay, Is the Rehnquist Court an “Activist” Court? The Commerce Clause Cases (73 U. Colo. L. Rev. 1275), from a symposium on “Conservative Judicial Activism,” held in October of 2001, sponsored by The Byron R. White Center for the Study of American Constitutional Law and the University of Colorado Law Review:
In United States v. Lopez, the Supreme Court, for the first time in sixty years, declared an act of Congress unconstitutional because Congress had exceeded its powers under the Commerce Clause. In 2000, the Court reaffirmed the stance it took in Lopez in the case of United States v. Morrison, once again finding that Congress had exceeded its powers. Are these examples of something properly called “judicial activism”? To answer this question, we must clarify the meaning of the term “judicial activism.” With this meaning in hand, I examine the Court’s Commerce Clause cases. The answer I give to the question of whether the Rehnquist Court is an “activist” court is “no.” [Footnote: By "no" I mean "yes." While the Court is highly activist according to the definition I shall provide in Part I, I contend that it is less activist in precisely those cases for which it has been most criticized - in particular, its Commerce Clause cases.]
I. The Meaning of “Judicial Activism”
With one exception, I have consciously avoided, either in print or conversation, criticizing a judge or court for its “activism.” [Footnote: The exception was Randy E. Barnett, Left Tells Right: "Heads I Win, Tails You Lose," Wall St. J., Dec. 12, 2000, at A26, reprinted in Bush v. Gore: The Court Cases and the Commentary 264 (E.J. Dionne Jr. & William Kristol, eds., 2001) (criticizing the Florida Supreme Court for its "activism" in Bush v. Gore using the same definition described below).] My hesitation stems from a belief that this term, while clearly pejorative, is generally empty. It is empty whether used by New Dealers to criticize the Progressive Era Supreme Court, modern conservatives to criticize the Warren Court, or more recently by those on the left to criticize the Rehnquist Court. When a decision is deemed to be “activist” this usually means only that a court has struck down a statute or reversed a criminal conviction – or in the case of Bush v. Gore reversed a state supreme court decision – and the person using the term disagrees with the outcome. In other words, “activism” usually refers to an action taken by a court of which the speaker disapproves. By the same token, the term usually employed as the opposite of activism – “judicial restraint” – is similarly short on content.
Though some use this rhetoric to imply that a court is acting in an activist fashion whenever it strikes down an act of a legislature, almost no one really believes this is always improper. If pressed, I could think of only one academic (who shall remain nameless) who contends that courts should never, or almost never, strike down unconstitutional laws. Surely no one in this Symposium believes this. Though we may often disagree over whether a particular statute is constitutional, we all share the conviction that the Supreme Court and lower federal courts should strike down or nullify unconstitutional laws enacted by legislative majorities. Therefore, if something called “judicial activism” is a bad thing, this cannot be what the term means.
Rather than take the time to survey all the possible meanings of “judicial activism” – and assuming you do not wish to abandon the term entirely as I would favor – let me offer and then defend my own definition: When speaking of constitutional adjudication, it is activist for courts to adopt doctrines that contradict the text of the Constitution either to uphold or nullify a law. In sum, it is activist for courts to substitute for the relevant constitutional provision another provision that they think, for whatever reason, is preferable. According to this definition, it is not judicial activism to strike down a statute that violates the text of the Constitution. To the contrary, it would be activist to do nothing in the face of legislation that runs afoul of the written Constitution.
I believe that most people, including most participants in this Symposium, would accept this definition of judicial activism upon reflection. Most everyone thinks courts should find a statute unconstitutional when it contradicts what the Constitution says. Where disagreements would, should, and do arise is over what the Constitution (or statute) actually requires; and part of this disagreement is over how the meaning of the Constitution should be determined.
I am of the view that the courts and Congress should respect the original meaning of the Constitution where that meaning can be determined. I also think that, when the meaning is vague or where the text authorizes supplementation, as it does for example in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment, there is room for discretionary choices and a need for judges to formulate constitutional doctrines to put these clauses into effect.
Here is how the essay ends:
I am not claiming that the present Supreme Court has never acted in an activist fashion as I have defined the term. As was discussed in Part I, from an originalist perspective, there are actually two distinct types of activism that can apply to judicial decisions that deviate from the text of the Constitution: decisions with activist results and those opinions employing activist methods. The first is when the result of a given case contradicts the original meaning of the text. The second is when judges do not even try to discern the original meaning of the text.
Given that the Rehnquist Court largely continues to adhere to the doctrines of the past sixty years, I have no doubt that it does engage in the first sort of activism all the time. Moreover, the Rehnquist Court rarely employs an originalist method. Even in Lopez itself, Justice Rehnquist (unlike Justice Thomas) did not base his decision on the original meaning of the Commerce Clause, choosing instead to rely on “first principles” while trying to remain consistent with New Deal decisions. Nevertheless, the result reached by the Court in Lopez and Morrison were much closer to the original meaning of the Commerce Clause than any case in the previous sixty years. The irony is that the Court is being criticized as activist in the few areas where its results have come closer to the original meaning of the text than any Supreme Court in recent memory – that is, where it has acted in a less activist manner.
Of course, you are free to reject the conception of “judicial activism” I am proposing and to advocate a power in Congress or the courts (or both) that allows them to change the meaning of the Constitution with the times and reach results you think are better. If you do, however, you have no basis to criticize the Supreme Court’s Commerce Clause cases as “activist” – unless you also adopt a conception of “judicial activism” that applies whenever a court strikes down any law enacted by a legislature. But this would be a conception of “judicial activism” that would call into question the entire practice of judicial review. Few would embrace this conception of judicial activism except hypocritically to criticize a Court for those decisions with which they disagree.
My preferred position is to drop all uses of “judicial activism” as a way of characterizing a judicial opinion with which you disagree. But so long as I am forced to use or react to the term, I will see your definition and raise mine.