Roberts Court Is Still a “Less Activist” Court

In today’s NYT, Adam Liptak explains why the Roberts Court is far less “activist” than its post-War predecessors, at least as measured by its willingness to strike down federal laws.

“If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other.”

But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

This may be news to the NYT‘s readership, but it’s something I’ve been pointing out for years, including when Justice Ginsburg made her remarks in August and when Liptak first reported the data showing that the Roberts Court overturns federal legislation at a significantly lower rate than the Warren, Burger, and Rehnquist courts (and reverses precedent less often too). The most “activist” justice on the Court is also not the most conservative, but Justice Kennedy, who’s almost always in the majority to strike down federal laws, whether we’re talking about DOMA and the Voting Rights Act, or the Stolen Valor Act and Guantanamo detainee legislation (and then laments that the nation relies upon the Court to resolve so many important questions).

Unless one advocates a Thayerian approach to judicial restraint, this measure of “activism” tells us very little about whether the Court’s decisions are correct. As Liptak notes, many conservatives and libertarians believe the Court should be more active in striking down federal legislation, particularly where laws stretch the bounds of Congress’s enumerated powers. And while some on the Left complain of an unduly “activist” Roberts Court, most progressives have not become true advocates of “restraint,” as they would have been thrilled had the Court been more “activist” and struck down the Solomon Amendment or the federal Partial-Birth Abortion Act. Doctrinal innovations are only disparaged when they move in an unwanted direction.

In conventional political discourse, “activism” has become short-hand for a wrong-headed Supreme Court opinion. Attacking the Court, or a given decision, with this label is easier than making the case that a given decision is wrong on the merits. But if we truly want to understand the Court, and fairly evaluate its work, we need to move beyond such simplistic labels. If we don’t like the current Court’s approach (and I like it in some areas, but not in others), we should not assume its because the Court is too “activist,” but because it has doctrinal commitments with which we disagree.

UPDATE: Rick Hasen comments here.

MORE: Hasen suggests we should consider the relative significance of the laws struck down by the Court.  I agree that this is important if we want to understand the nature and magnitude of the Court’s influence, but I don’t think it’s very helpful in trying to determine whether one Court is more “activist” than another (assuming, of course, that the term “activist” is meaningful at all). Is Citizens United more or less “significant” than Boumediene? It depends on the criteria. I am also not sure how a measure of significance should affect how “activist” we consider an individual decision to be. Is the idea that the Court should act differently if it considers a given piece of legislation to be more “significant”? I recognize that, as a descriptive matter, the Court may be reluctant to provoke confrontations with the executive and legislative branches where it fear it might lose out, but there are few among the current Court’s critics that advocate such a posture across the board.

These are all reasons why focusing on “activism” is unhelpful. As Doug Matconis comments:

When examining whether a Court is acting properly, the question shouldn’t be simply how often they strike down a legislative act, or a law passed via referendum such as Proposition 8. For a whole host of reasons, that definition ignores the fact that the legislature, and the people acting via referendum, can and do quite often get things wrong in the sense that they step outside the proper boundaries of their powers, or act in a manner that violates the rights of a particular minority. Instead, the question ought to be the extent to which the Court is performing the functions for which was created, which include not just interpreting existing law in the light of the Constitution (Federal or state depending on the circumstance) but also acting as a check against the Legislative and Executive Branches.

Most critics of the Court should stop pretending to be advocates of judicial “restraint” and opponents of “activism” and just get on with their substantive critiques of the Court (and not just because the accusations of “activism” often fail on their own terms). Some of the substantive critiques are quite compelling — I certainly have my share of beefs with the current Court — even if not politically popular. Therein lies the rub. Accusations of “judicial activism” resonate in our political culture in ways that more substantive critiques do not. It’s far easier to attack the Court for alleged “activism” than it is to explain why some democratically enacted pieces of legislation should fall and others not. Yet that is the sort of debate we should have.