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Adam Cohen on "Conservative Judicial Activism":

In this column, NY Times reporter Adam Cohen attacks the "conservative judicial activism" of the Roberts Court. Unfortunately, Cohen's argument is riddled with flaws and misrepresentations. Here are his main points:

The [conservative] individuals and groups that have been railing against judicial activism should be outraged. They are not, though, because their criticism has always been of "liberal activist judges." Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks.

The most basic charge against activist judges has always been that they substitute their own views for those of the elected branches. The court's conservative majority did just that this term. It blithely overruled Congress, notably by nullifying a key part of the McCain-Feingold campaign finance law, a popular law designed to reduce the role of special-interest money in politics.

It also overturned the policies of federal agencies, which are supposed to be given special deference because of their expertise. In a pay-discrimination case, the majority interpreted the Civil Rights Act of 1964 in a bizarre way that makes it extremely difficult for many victims of discrimination to prevail. The majority did not care that the Equal Employment Opportunity Commission has long interpreted the law in just the opposite way.

The court also eagerly overturned its own precedents. In an antitrust case, it gave corporations more leeway to collude and drive up prices by reversing 96-year-old case law. In its ruling upholding the Partial-Birth Abortion Ban Act, it almost completely reversed its decision from 2000 on a nearly identical law.

Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech. Most conservative (and even more so libertarian) jurists would agree that failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits. A few judicial conservatives (such as Robert Bork and University of Texas lawprof Lino Graglia) have called for the virtual abolition of judicial review; so have a few liberals, such as Harvard professor Mark Tushnet, and Stanford's Larry Kramer. But such views are very much in the minority among conservative jurists and legal scholars - almost as much so as among liberals.

Cohen also implies that conservatives contradict themselves by supporting "overturning" of the Court's precedents and invalidation of decisions by federal agencies. Few if any conservative jurists believe that the Court's precedents are somehow sacrosanct, especially not if they conflict with the text and original meaning of the Constitution. That is particularly true of the very recent precedents (McConnell v. FEC, Stenberg v. Carhart, Grutter v. Bollinger) mentioned in Cohen's post, all of which were decided within the last few years by narrow 5-4 majorities. Such precedents have failed to gain general acceptance in the legal community (as their narrow 5-4 margins suggest), and are too recent to have engendered much in the way of reliance by the general public. The degree to which the Court should defer to its own flawed precedents is controversial among conservatives (as it also is among liberals and libertarians). There is no general conservative consensus in favor of following wrong precedents, and indeed most right of center legal scholars tend to the view that flawed precedents should be overruled, or at least severely constricted. The same points apply to flawed decisions by federal agencies. It is also worth noting that the Court did not in fact "overturn" the precedents Cohen discusses, but merely limited the scope of their application. Perhaps Cohen means to say that they have been so severely limited as to virtually overturn them. If so, he needs to provide an argument justifying this far from obvious conclusion instead of a bald and misleading assertion.

Cohen also contradicts himself on these issues. If judicial conservatives are supposed to applaud judicial restraint in overruling laws enacted by legislatures, why shouldn't they support the overruling of precedents that themselves struck down legislative enactments (as was true of Roe v. Wade and Stenberg v. Carhart)? Yet Cohen criticizes conservatives as inconsistent for supporting the Court's partial retreat from Stenberg in Gonzales v. Carhart.

Finally, Cohen commits an egregious factual error in claiming that the Supreme Court conservatives ruled in its school affirmative action decisions that the Constitution "protects society from integration." As Cohen surely knows, the Court merely ruled that the Constitution forbids some types of racial assignment of students. In no way did the justices claim that "integration" is itself unconstitutional - especially if it is achieved by racially neutral policies.

There are plenty of legitimate ways to criticize the Roberts Court conservatives' recent handiwork. I have taken issue with them on some important points myself (.e.g. - here). Cohen's critique, however, fails to rise above poorly substantiated name-calling.

Cohen may be unsophisticated (mail):
And much of his argument is loose. But it is not as confused and haphazard as you suggest. His point is that the court has been so activist that it is marching forward on multiple fronts. To point out that he has cited equivocal evidence really just garbles up his thesis and strikes down a straw-man. The whole point is that the court has reversed its own trends in a number of different ways, so much so there is sufficient evidence to say something is going on other than business as usual.
7.9.2007 8:19pm
Ilya Somin:
The whole point is that the court has reversed its own trends in a number of different ways, so much so there is sufficient evidence to say something is going on other than business as usual.

Cohen's argument was not merely that there is a "trend" that goes beyond "business as usual." It is that what the Court has been doing is the kind of "activism" that conservatives, if they are to be consistent, should condemn. It is this latter argument that I attack in my post. If Cohen had merely written that the Court is now somewhat more conservative than before, the NY Times would probably not have bothered to run the piece, because it would be making a point that hardly anyone disagrees with.
7.9.2007 8:22pm
AF:
Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials.

He isn't saying that conservative are practicing the sort of judicial activism that conservatives criticize -- obviously, they aren't. Rather, he said they are practicing judicial activism, which is true under the neutral definition of judicial activism that he proposes -- namely, the striking down of democratically-enacted statutes.

Of course, some conservatives think that democratically-enacted laws should be stricken down when they conflict with their ideas of what the Constitution means. This doesn't make them wrong or unconservative, but it does make them activists by any neutral definition.

Of course, some could argue that striking down democratically-elected laws on grounds they disagree with is activist but doing so on grounds they agree with isn't. But then it isn't clear what the word "activist" means, other than "bad."

This argument has been made many times before, but apparently the word hasn't got out yet.
7.9.2007 8:24pm
Allan (mail):
No argument with your assertion. But a point. Liberals tend to want to give more weight to certain parts of the constitution and conservatives want to give more weight to other parts. And, with some, e.g., the 2nd amendment, they just disagree with the meaning.

"Judicial activism" is, it seems, enforcing a view of the constitution that someone else disagrees with.
Roe v. Wade is a different beast altogether, penumbras and all that...
7.9.2007 8:27pm
Ilya Somin:
He isn't saying that conservative are practicing the sort of judicial activism that conservatives criticize -- obviously, they aren't.

Actually, that is exactly what he's saying.
7.9.2007 8:29pm
Malvolio:
they are practicing judicial activism, which is true under the neutral definition of judicial activism that he proposes -- namely, the striking down of democratically-enacted statutes.
Is that really the definition of "judicial activism" anyone is using?

And while I'm asking questions, what does "judicial activism" mean, anyway? I see it all the time, and from context I would think it means "doing stuff the writer doesn't like", but I'm hoping that there is something better.
7.9.2007 8:32pm
wt (www):
Unconstitutional laws should be struck down. Constitutional ones should be upheld. If we could identify with particularity which laws fell into each category and acted accordingly, there'd be no activism.

But we can't. Charges of activism are thus merely judicial disagreements about categorizing. Adam Cohen is saying he thinks the Roberts Court is especially bad at categorizing, which is strange, since conservatives complained about miscategorizing before Roberts and Alito joined the bench. I think I read this op/ed before when it was called every other op/ed about the Roberts Court.

What makes the piece especially bothersome and annoying is mostly just Cohen's arrogance at assuming he's got the right categories to begin with. On most of these issues reasonable people can disagree, and he should acknowledge that.
7.9.2007 8:35pm
OrinKerr:
Yes, Cohen's arguments are very often inaccurate and unfair. Here was my snark on Cohen earlier today:
UPDATE: On today's Times op-ed page, Adam Cohen reminds us of his favorite strategy: to condemn conservative decisions striking down legislation as outrageous activism and conservative decisions upholding legislation as abandonment of the judicial function, with as much discussion of Jim Crow and Lochner as will fit in an op-ed space.
7.9.2007 8:41pm
anonVCfan:
"In this column, NY Times reporter Adam Cohen attacks the "conservative judicial activism" of the Roberts Court. Unfortunately, Cohen's argument is riddled with flaws and misrepresentations."

Yup. And Ann Coulter wrote a strange column this week comparing liberals with criminals.

I'm also reliably informed that if one looked to the east this morning, one would see the sun.
7.9.2007 8:46pm
OrinKerr:
7.9.2007 8:46pm
anonVCfan:
The quoted passage looks a lot link Prof. Kerr's mad lib op ed on judges from a while back.
7.9.2007 8:47pm
Public_Defender (mail):
Finally, Cohen commits an egregious factual error in claiming that the Supreme Court conservatives ruled in its school affirmative action decisions that the Constitution "protects society from integration."

I wouldn't call this an egregious factual error. In areas of the country where people live segregated lives, the plurality decision would indeed "protect[] society from integration."

I was part of race-based bussing, and the opposition to it didn't have anything to do with opposition to race-based distinctions. The opposition was from white parents who didn't want their kids to go to school with black kids. they now have four allies on the Supreme Court of the United States.
7.9.2007 8:52pm
David M. Nieporent (www):
He isn't saying that conservative are practicing the sort of judicial activism that conservatives criticize -- obviously, they aren't.
Yes, that is what he's saying. He's condemning conservative hypocrisy on that basis.
Rather, he said they are practicing judicial activism, which is true under the neutral definition of judicial activism that he proposes -- namely, the striking down of democratically-enacted statutes.
Yes, under his definition of activism, his statements are true, but what the hell kind of argument is that? He redefines a term in a non-standard way and then constructs an argument around it.

For a while, liberals admitted they were pro-judicial-activist and said, "Wanna make something of it?" After that, liberals started denying that they were activist at all. The new thing is for liberals to say, "Oh yeah? Well, if we redefine the term activist, then you're more activist than we are, so you're hypocrites."

"Judicial activism" is not the same as "judicial activity." Striking down an unconstitutional law is not judicial activism as that term has been used.
7.9.2007 8:54pm
Scipio_79:
As I stated previously:

Cohen does give a definition of judicial activism and its the same definition the Times used in the June 29 editorial "Resegregate Now." Cohen states that judicial activism is "Federal judges relying on the Constitution to tell elected local officals what to do." That's activism!?!?! It so, please sirs may I have some more.

This guy is asinine.
7.9.2007 8:56pm
Ilya Somin:
Yup. And Ann Coulter wrote a strange column this week comparing liberals with criminals.

I'm also reliably informed that if one looked to the east this morning, one would see the sun.


IF you really think that Cohen is a liberal equivalent of Ann Coulter, that is a much harsher indictment of the man than what I wrote. For what it's worth, I had some harsh words for Coulter here.

Moreover, Cohen is a prominent reporter for the NY Times. Coulter, to my knowledge, lacks an equally prestigious and respectable institutional affiliation.
7.9.2007 8:56pm
PersonFromPorlock:
Isn't the real problem, though, that the Court, whether under liberal or conservative sway, interprets the law? Shouldn't the Congress write the law with sufficient clarity that the Court's only concern is its application? And if the application is unclear, or if the law doesn't conform to the Constitution, shouldn't the Court simply declare the law invalid and leave it up to the Congress to write a new one?

When the Justices say "here's what the law really means," they're indulging in an institutional activism that begs for them to put their words in Congress's mouth. They shouldn't do it, of course, but it will never change because the Court wants the power and our Congresscritters don't want the responsibility.
7.9.2007 8:57pm
dre (mail):

what does "judicial activism" mean, anyway?


Finding ways to make a ruling (think Kelo, Roe et al) that the WaPo and NYT editorialists find to their liking? Mr. Cohen is having a Beltway party dispute with the Supremes. Personally, I think the Supreme Court should be located in Fargo ND next to Lileks gas station.
7.9.2007 8:58pm
Federal Dog:
"Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks."


Who can even begin to take this seriously?
7.9.2007 9:01pm
Thorley Winston (mail) (www):
He isn't saying that conservative are practicing the sort of judicial activism that conservatives criticize -- obviously, they aren't. Rather, he said they are practicing judicial activism, which is true under the neutral definition of judicial activism that he proposes -- namely, the striking down of democratically-enacted statutes.


Baloney, Cohen is trying to redefine the term "judicial activism" in order to support a charge of hypocrisy because he knows if he uses the term as conservatives have been using it, it wouldn't stick. There's nothing "neutral" about it.
7.9.2007 9:01pm
Cohen may be unsophisticated (mail):
Striking down an unconstitutional law is not judicial activism

Yes, but Cohen's unstated premise is that the criteria for determining constitutionality the Roberts Court is using is bunk. For that reason he notes how much precedent is being junked, how deference to federal agencies (Chevron) and elected local officials (federalism) and really old precedents (Leegin as a stand-in for originalism) and popular opinion (McCain-Feingold) is being swatted away. That's why Cohen's most activist decision is the school cases, because it turns Brown -- certainly a decision more ingrained in the culture than Miranda or Roe -- on its head. Cohen isn't just saying "these conservatives are hypocrites". He's saying look at how forehead smackingly incredibly activist -- from an empirical standpoint -- these guys are. The hypocrisy is just part of his larger point.
7.9.2007 9:05pm
Cohen may be unsophisticated (mail):
are bunk, rather
7.9.2007 9:06pm
David M. Nieporent (www):
I was part of race-based bussing, and the opposition to it didn't have anything to do with opposition to race-based distinctions. The opposition was from white parents who didn't want their kids to go to school with black kids.
That wasn't even true decades ago -- the opposition primarily came from people who didn't want their kids being sent far from home to go to school -- and it's certainly not true now.

I know that many liberals need it to be true in order to feel that they're fighting the good fight, but needing it to be true doesn't make it true.
they now have four allies on the Supreme Court of the United States.
The plaintiffs included both black and white parents, few of whom presumably cared about racial classifications in the abstract but most of whom cared about not having their children sent on buses for hours to far away schools for the sake of assuaging liberal guilt.
7.9.2007 9:19pm
michael (mail) (www):
The organizers could have relied on the crude proxy that most Russian Jewish immigrants and/or most atheists are more socially liberal than Bork is.

The 'and/or' is a stand in for the 'inclusive OR'?
7.9.2007 9:22pm
Cohen may be unsophisticated (mail):
The plaintiffs included both black and white parents

That is true, but it isn't Cohen's point in mentioning the case. He isn't attacking the motives of the plaintiffs, but rather the uncharacteristic brazenness of the Court. He didn't mention Lochnering is so a ridiculous fashion: he mentioned Janice Roger-Brown, who is a potential SCOTUS nominee and does support a return to Lochner. And, in that trash hauling case, the conservatives accused each other of Lochnering, too, so Cohen isn't really out of line. No seriously. Go read the trash hauling case.
7.9.2007 9:23pm
Cohen may be unsophisticated (mail):
Here is commentary on the ghost of Lochner in the trash case.
7.9.2007 9:29pm
duglmac (mail):
>>"The most basic charge against activist judges has always been that they substitute their own views for those of the elected branches."

SOmeone needs to do some reading. The Supreme Court's charter has never been to look to elected bodies for guidance. Their charter has always been to interpret laws using the constitution as a basis. It is an essential piece of the check's and balance of the two elected points of the triad.
7.9.2007 9:31pm
Dave Hardy (mail) (www):
Hmmm... he seems to confuse judicial activism with judicial review.

It blithely overruled Congress, notably by nullifying a key part of the McCain-Feingold campaign finance law, a popular law designed to reduce the role of special-interest money in politics.

Hmm... I find it rather hard to see how one can deduce wild-eye judicial activism from a finding that "Congress shall make no laws," etc. limits, mind you, just limits, a law making it a crime to mention a candidate's name over the airwaves within 60 days of the general election.

(To be precise, to spend money to purchase airtime to mention a candidate's name. The networks themselves are free to mention candidates all they want: they have a special exemption).
7.9.2007 9:33pm
Owen Hutchins (mail):
"Judicial Activism" has always and only been applied to decisions the accuser doesn't like. If they agree with a decision, it is "proper and Constitutional".
7.9.2007 9:34pm
Jeff R.:
Isn't the difference largely in the age of the laws to be stricken? Striking down freshly-minted laws is the rightful province of the judiciary, judging each piece of legislative work-product for unconstitutional follies, serving as the brakes on the vehicle of state, while striking down old laws that have served well for decades and clearly passed muster at the time of their coinage, often so strongly that it did not occur to any to challenge them attempts to turn those brakes into a second engine and send that metaphorical vehicle wildly careening into countless crowds and barriers...
7.9.2007 9:36pm
David M. Nieporent (www):
Yes, but Cohen's unstated premise is that the criteria for determining constitutionality the Roberts Court is using is bunk.
It's "unstated" because he has no support for it. Plus, much as you're trying to salvage something from what he wrote, neither Ledbetter nor Leegin had anything to do with "constitutionality" at all.
For that reason he notes how much precedent is being junked, how deference to federal agencies (Chevron) and elected local officials (federalism) and really old precedents (Leegin as a stand-in for originalism) and popular opinion (McCain-Feingold) is being swatted away.
In short, he's throwing a lot of nonsense at the wall and hoping it sticks. You've got to love the fact that he portrays the overruling of old precedents as especially shocking (Leegin), and the overruling (or narrowing) of infant precedents (Carhart) as especially shocking. Apparently any overruling of any precedent is especially shocking.

He's mistaken if he thinks Chevron defense applied in Ledbetter. And he's delusional if he thinks McCain-Feingold represented popular opinion.
That's why Cohen's most activist decision is the school cases, because it turns Brown -- certainly a decision more ingrained in the culture than Miranda or Roe -- on its head.
It did no such thing. Parents Involved was perfectly compatible with Brown.

Cohen isn't just saying "these conservatives are hypocrites". He's saying look at how forehead smackingly incredibly activist -- from an empirical standpoint -- these guys are. The hypocrisy is just part of his larger point.
As mentioned earlier in the comment thread, "activism" is not defined by fidelity to "precedents."

Incidentally, Cohen may know what he doesn't like -- Lochner -- but he doesn't know what Lochner is. It did not hold, as he claimed, that the wage law "violated the employer's due process rights." It held that it violated the employee's due process rights.
7.9.2007 9:42pm
Cohen may be unsophisticated (mail):

What can we conclude about the court's swing voters, about O'Connor herself, or about the Roberts Court, from the speed with which her legal legacy is being dismantled?

So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O'Connor's theoretical framework for abortion, campaign finance, and affirmative action. That's to name just a few. My friend Marty Lederman predicted as much when O'Connor first retired two years ago; still, the speed of it all is proving to be unsettling, if not downright unseemly.



This is Dahlia Lithwick. I think she and Cohen are making much the same point.
7.9.2007 9:43pm
eugene lover (mail) (www):
I just noticed that there are "I [heart] eugene volokh" shirts available at illegalbriefs.com. Pretty cool.
7.9.2007 9:44pm
Reg (mail):
"what does 'judicial activism' mean"

I understand those who use the term "judicial activism" to mean one of two things:

1) the broader definition refers to judicial decisionmaking using an 'illegitimate' or 'incorrect' methodology, so, for example, for an originalist, any decision not using originalist methodology would be activist. This is rather unhelpful, and particularly for those who have unique or minority views on methodology. For ex., Justice Breyer would have to call almost every other judge an activist.

2) the narrower definition refers to judicial decisionmaking that is completely political, that is, the outcome is determined only by political concerns, without concern for any objective legal decisionmaking methodology. This is otherwise known as "results oriented jurisprudence." For example, if a judge's politics were strongly libertarian, and he reached his conclusions without any care for precedent, statute, or methodology, but looked only to his politics, or other subjective biases, he would be activist. Even if he tried to conceal his decisionmaking process by use of traditional legal arguments, he would be an activist.

I think the second is the most useful definition, but the problem is that it becomes overrused because it is easy for people to think that those who reach opposing conclusions could only have been guided by their politics. Another problem is that often, our methodology matches our politics, making it easy to draw the conclusion that politics motivates the choice of methodology.

Activist charges are often unfair because legal decisionmaking can reach widely different results based on how much weight a given methodology gives to the objective factors of precedent, original intent/understanding, text, purpose, etc.

I find myself using it most often for those who make explicit their belief in judicial decisionkaing untethered to any objective methodology and only argue for particular results (ex., Greenhouse writing that courts should be "engines for social progress.")
7.9.2007 9:45pm
Cohen may be unsophisticated (mail):

Apparently any overruling of any precedent is especially shocking.



Oh, stop. You're just being dunderheaded. I didn't say I agreed with Cohen. But he has a coherent point.

You can say Parents Involved is on all fours with Brown, but there are dozens of legal scholars who would disagree, so Cohen is on as firm ground as they are -- and no not all of them are liberal moonbats. (And if it were true, Kennedy wouldn't have written his own opinion.)

And I do not agree with Leegin. I may agree with the outcome, but it was for Congress to decide. Striking down perfectly reasonable century old precedents is not conservative; in this case it was just appeasing the Cato Institute.
7.9.2007 9:47pm
Dan Blatt (www):
Not only is Adam Cohen sloppy in his understanding of the conservative judicial philosophy of the Roberts' court, but he also seems to write like a left-wing blogger in describing the recent court decisions. But, then again he is a New York Times reporter so maybe there's not much difference.

I mean, he writes that courts are using their power "oh behalf of . . . whites who do not want to be made to go to school with blacks." That wasn't the case at all. It was individuals who objected to school district criteria which attempted to "balance" racial distribution at various schools which prevented kids from attending schools near them. The parents were upset not because their children would have to attend schools with blacks, but because they would have to travel too far to go to school (because of their race).

And to suggest that the Roberts' court "blithely" overruled the "key part" of McCain-Feingold is to dismiss the serious reasoning of the court is that decision.

I would hardly call the law "popular" I'm not aware of any groundswell of support for the bill (except among the media); it seemed more designed to please the chattering classes than the general public. And he notes what the bill was designed to do, instead of what it actually did--preventing certain groups from using the airwaves to make the public aware of elected officials' stances on issues.

A reporter should know better.
7.9.2007 9:49pm
plunge (mail):
Ilya, you're not being entirely forthright either:

"Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars."

Look how you turned "conservative" into the smaller set of conservative scholars and jurists. I suspect that is because you know full well that there has been copious rhetoric from conservatives IN GENERAL as to how judges are overruling the will of the people, answerable to no one, yadda yadda yadda. In fact, I would say that this has been the pre-eminent line of attack from conservatives in general. Pretending that it has not does not help your argument, which is mostly on point.
7.9.2007 9:56pm
Cohen may be unsophisticated (mail):
As to McCain-Feingold, it can be argued both ways. A poll says 58% of people agree with WRTL. Other polls show people feel there is too much money in politics and politics is corrupt, etc., the reasons behind the passage of the law. It depends how you parse the polls. Agree or not, Cohen has a valid argument.

You describe Parents Involved your way, with certain rhetoric, he uses other rhetoric that he'll say exposes what your rhetoric hides. It's a draw.
7.9.2007 9:57pm
John P. Lawyer (mail):
Ilya,
You wrote:
"Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech."

First, if you disagree with Cohen's assumption - that conservatives equate judicial activism with striking down democratically enacted laws (or otherwise hijack the democratic process by constitutionalizing certain rights), how do conservatives define judicial activism (or as you write - the "vast majority of conservatives")? Second, if the Court fails to strike down laws *you* think are unconstitutional, how is it possible to describe the Court as "activist?" Not doing something seems quite clearly to best be described as "inactivism." Third, because it appears that Cohen (especially as evidenced by this column) is not a particularly careful writer, he conflates a number of different forms of "activism." In condoning the Roberts' Court for failing to adhere to recent precedent, he is complaining (implicitly) that the Court is being "activist" by not properly practicing "stare decisis." Not that he explicitly makes this argument, but his reference to Leejin (Dr. Miles), plus the McCain-Feingold and Stenberg cases bears out this observation. Fourth, I think you are being a bit unfair to Cohen with respect to his comment that the "Fourteenth Amendment protects society from integration." It seems somewhat obvious, that in the context of this column, that was a caustic commentary about the functional outcome of the Seattle and Louisville cases, rather than a statement about its actual holding. (Indeed, if he THINKS that's the holding of those cases, he ought to be fired.). Fifth, if you are truly persuaded by Roberts' and Kennedy's opinions "limiting" (or distinguishing) recent precedent, I am not sure what to say. I think Scalia put it best when he called Roberts out on it -- as being an intellectual fraud. If you support that sort of intellectually dishonest decisionmaking, so be it--that's a far more dangerous development than any so-called "activist" court. Finally, Cohen's column is astonishingly uninformed because a number of the Court's decisions (Twombly, Credit Suisse, Leejin, Phillip Morris, Tellabs) that ostensibly limit (or narrow) the access of plaintiffs to a federal forum were supported by both "conservatives" and "liberals" alike.
7.9.2007 9:58pm
Reg (mail):

Not doing something seems quite clearly to best be described as "inactivism."



I think the term "judicial activist" uses the word "activist" in the sense of a protestor or ideologue, and not in the sense of a person who is very busy.
7.9.2007 10:09pm
Stuart M. (mail):
The role of federal judges in constitutional cases, especially on the Supreme Court, is to decide whether a statute is constitutional or not. If "activism" is something judges aren't supposed to do, then obviously something that is part of the job description - striking down laws that are unconstitutional - isn't activism. If Congress passed bills of attainder, it's not judicial activism to find them invalid.

My understanding of the term from back in law school is that judicial activism consisted of judges making stuff up and then using the ex nihilo invention to strike down statutes. By that view, Griswold and Roe and Lawrence are activist decisions. To a somewhat lesser extent (because the Const does in fact protect property and contract rights), Lochner is an activist decision. WRTL is not.

Cohen, in his politically reflexive and analytically feeble way, is positing that the proper "conservative" judicial approach is to just defer to other decisionmakers. In other words, he thinks judicial conservatives don't believe in judicial review. It's just stupid.
7.9.2007 10:12pm
Cohen may be unsophisticated (mail):

In other words, he thinks judicial conservatives don't believe in judicial review. It's just stupid.



I would agree the critique was stupid if Roberts hadn't said all judges do is call balls and strikes like an umpire in his confirmation hearing.
7.9.2007 10:15pm
Reg (mail):
"copious rhetoric from conservatives IN GENERAL as to how judges are overruling the will of the people"

The rhetoric, such as that seen in popular conservative print, talk radio, tv, etc., calls decisions activist that overturn the will of the people WITHOUT ANY BASIS OTHER THAN THE JUDGE'S POLITICAL VIEWS. Where the options are deferring to the will of the people or creating new law out of whole cloth, conservatives argue for deference. Where there are strong doctrinal or precedential reasons for overturning a law, conservatives often argue that judges should overturn the will of the people.
7.9.2007 10:18pm
Reg (mail):

judicial conservatives don't believe in judicial review. It's just stupid.

I would agree the critique was stupid if Roberts hadn't said all judges do is call balls and strikes like an umpire in his confirmation hearing.


Why is Roberts' metaphor an argument against judicial review? I took Roberts to be suggesting that judges are to decide whether a given law is within the objective scope of constitutionally permissible laws (a strike) or if its outside that scope (a ball). The metaphor is to suggest that he will use an objective predetermined test to determine which pitches are balls and strikes; he won't have his own personal strike zone, and the zone won't change depending on who the batter is.

Here's a fuller quote. I don't know how you can interpret this as an argument against judicial review:


Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
7.9.2007 10:27pm
Cohen may be unsophisticated (mail):

the objective scope of constitutionally permissible laws

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.




Yes, and Cohen's point seems to be that the empirics show Roberts has a faux-modest disregard for that system of precedent and a bogus sense of what constitutionally permissible means.
7.9.2007 10:31pm
John P. Lawyer (mail):
Reg/Stuart M.,
Just to be clear, I am not suggesting that the Court is acting appropriately if it fails to strike down unconstitutional laws, especially like in your example - a bill of attainder. I am just suggesting that the term "activist" doesn't really capture that inaction, unless you define activism so broadly to just mean "when a court is not acting in a judicially appropriate manner" -- which would include both doing things it ought not to, and failing to do thing it ought to. I tend to think that the word activism is more closely associated with instances when the Court is exercising power it doesn't have (or we think it ought not have), rather than failing to properly use its powers.
7.9.2007 10:34pm
John P. Lawyer (mail):
in my earlier post, I should have written: "In *CONDEMNING* the Roberts' Court for failing to adhere to recent precedent, he is complaining (implicitly) that the Court is being "activist" by not properly practicing "stare decisis."

What a silly typo!
7.9.2007 10:42pm
wooga:

My understanding of the term from back in law school is that judicial activism consisted of judges making stuff up and then using the ex nihilo invention to strike down statutes. By that view, Griswold and Roe and Lawrence are activist decisions. To a somewhat lesser extent (because the Const does in fact protect property and contract rights), Lochner is an activist decision. WRTL is not.

Stuart M wins the prize. This is exactly correct.

A judge can be sloth-like practioner of judicial activism. He can also be a hyperactive, ADD non-activist. Put simply, the term "judicial activism" has always been understood - in legal academia - as the judicial branch assuming the role of the legislative branch. It has nothing to do with work ethic, the number of rulings you make, or how often you strike down statutes.

The proper "non-activist" role of the judiciary is to resolve conflicts in interpretation and supremacy between statutes, the const., and so on. This naturally involves striking down statutes, and judges of all political stripes can be proper judges. However, when the judiciary decides it is going to "invent" a right, or decides it will demand the legislature enact a certain law within 48 hours, and so on, the court is partaking in judicial activism.

The issue comes into play because many judges are elitist, and fancy themselves philosopher kings who "know better" than those stupid legislatures what the law should be (I leave it to the reader to decide which party is more likely to spawn such elitist judges). It takes a great deal of humility to admit that - no matter how smart you are - you have a limited function in your job, and you should stick to it, even if the world is denied your grace and wisdom as a result.

Unfortunately, the vogue on the left seems to be to "frame" words into some favorable definition to score political points. See, for example, the constant blog posts on lefty sites which try and compare Bush-style neocons with fascists because they've sold their souls to Haliburton, ignoring that fascism is a real historical term, with a real historical meaning, and involves elevating the state over corporations, NOT the other way around. Adam Cohen is doing that with the term "judicial activism."
7.9.2007 10:45pm
Cohen may be unsophisticated (mail):

Adam Cohen is doing that with the term "judicial activism."



No, you're doing that with Cohen's article.
7.9.2007 10:49pm
tsotha:
Stuart M. gives a definition that matches my perception as a non-lawyer. Once judges start to use third-order arguments to support their own politics the written constitution is worthless. Roe is a great example, where a right is dreamed up where none existed for the first 200 years of constitutional government.

With that kind of behavior the Supreme Court becomes nothing more than an American Council of Guardians, stepping in to overrule legislatures when they make incorrect social policy.
7.9.2007 10:50pm
Cohen may be unsophisticated (mail):

With that kind of behavior the Supreme Court becomes nothing more than an American Council of Guardians, stepping in to overrule legislatures when they make incorrect social policy.


That is Cohen's argument about the Roberts Court, believe it or not.
7.9.2007 11:08pm
Cohen may be unsophisticated (mail):

Roe is a great example, where a right is dreamed up where none existed for the first 200 years of constitutional government.



Or, say, Leegin.
7.9.2007 11:10pm
wooga:

"...incorrect social policy. "
That is Cohen's argument about the Roberts Court, believe it or not

The key is to articulate why the social policy is "incorrect." If it is "incorrect" because it conflicts with higher law, then striking down the social policy is not judicial activism. If the social policy is "incorrect" because you think the legislature made a poor value judgment, that's judicial activism.
7.9.2007 11:17pm
Cohen may be unsophisticated (mail):
If the social policy is "incorrect" because you think the legislature made a poor value judgment, that's judicial activism.

Hence, my reference to LEEGIN.

And hence Cohen's reference to the lack of deference to elected local officials and federal agencies exercising delegated Congressional power. His point is the rapid shift in result is a byproduct of a change in the ideological composition of the court, and nothing more.
7.9.2007 11:23pm
wooga:

No, you're doing that with Cohen's article.

Cohen said:

This term, the court did precisely what those federal judges did: it invoked the 14th Amendment to tell localities how to assign students to schools. The Roberts Court's ruling had an extra fillip of activism. The civil rights era judges were on solid ground in saying that the 14th Amendment, which was adopted after the Civil War to bring former slaves into society, supported integration. Today's conservative majority makes the much less obvious argument that the 14th Amendment protects society from integration.

With few exceptions, the court's activism was in service of a conservative ideology.

How does the ruling in question have an extra 'fillip' of activism? Where is the court issuing the ruling based on "what it feels is better social policy" rather than "what the court interprets the higher controlling law to be"? So long as the court is using the latter jurisprudence, it is acting in the proper role of the judiciary, no matter how many laws it strikes down, no matter which race benefits the most, no matter how favorable to business the rulings are, no matter how smell Scalia's robes become. Cohen's approach is judging the merits of the rulings based on "who" wins, not "what the law said." If the bad guys wins, it is the responsibility of the legislature to fix the law. It is NEVER the court's right to change the law so that they can feel better about the 'good' guy winning.

Cohen is openly arguing that:

The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support "judicial modesty," but reviews of the court's rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress — the ultimate act of judicial activism — than has the liberal bloc.

He is redefining what the term "judicial activism" means. He is perverting a legal term of art to have some new definition which allows him to 'frame' the issue in his favor. It is disingenuous at best, or drooling brain damaged at worst.
7.9.2007 11:26pm
Cohen may be unsophisticated (mail):

The other disturbing aspect of the new conservative judicial activism is its dishonesty. The conservative justices claim to support "judicial modesty," but reviews of the court's rulings over the last few years show that they have actually voted more often to overturn laws passed by Congress — the ultimate act of judicial activism — than has the liberal bloc.


He is redefining what the term "judicial activism" means. He is perverting a legal term of art to have some new definition which allows him to 'frame' the issue in his favor. It is disingenuous at best, or drooling brain damaged at worst.




Oh, whatever. Justice Scalia wrote the same thing in one of his opinions this Term. Cohen is just parroting Scalia to get a rise out of people like you.
7.9.2007 11:29pm
wooga:
Really? I would be curious to read that part of a Scalia opinion. Please provide a cite. I'm not doubting you, it would simply be very handy to have another grounds to ding Scalia.
7.9.2007 11:30pm
whackjobbbb:
The guy wants the courts to stand by while incumbent politicians silence their political opposition, and you're actually taking him seriously? Please.

Allowing that nonsense to stand would have been the purest form of judicial activism. The Congress amended the Bill of Rights, used unconstitutional means to do so, and no SC worthy of the name should have ever let that stand. As mentioned above, sloth is also activism, as we see in this case.

And if the aim was to take money out of politics, the incumbent politicians better go back to the drawing board. Frickin RON PAUL has wound up with a money stash that even just a few years ago would have been considered huge, and he's basically just an also-ran.

Fine to yelp about some of these other decisions, but complaining about THIS one is head-slappingly stupid. If you wanna limit campaign contributions to politicians, go right ahead, and our body politic seem to have found ways to get that done. But people must be allowed speech, and this isn't due to the forbearance of some black-robed fascists, or that of some collection of congresscritters.
7.9.2007 11:32pm
Cohen may be unsophisticated (mail):

How does the ruling in question have an extra 'fillip' of activism?



Cohen is pretty plainly saying that if you use a precedent to say the opposite of what it means, the interpretive theory is absurd. To Cohen, it would be like using the 19th Amendment to hold that women lack the right to vote. Perhaps you disagree, but if Cohen is right, that certainly counts as activism. So his definition isn't invalid.
7.9.2007 11:34pm
Cohen may be unsophisticated (mail):
Really? I would be curious to read that part of a Scalia opinion.

I am not finding that for you. Just google "Faux-judicial modesty" and "judicial obfuscation". It's been all over the news.
7.9.2007 11:35pm
wooga:
Incidentally, I have not read Leegin. But an old opinion is still a Court opinion. Too much deference runs the risk of enshrining an opinion as "court made law" controlling future incarnations of SCOTUS, which is not the role of the judiciary.
7.9.2007 11:36pm
wooga:

Roberts, the new chief justice in his second full term on the bench, had critics on the left and right, most notably his seatmate and ally Scalia. Writing in the campaign finance case, Scalia said Roberts was displaying "faux judicial modesty" by failing to acknowledge that his majority opinion in essence overturned a 2003 decision. Roberts made devotion to precedent a key part of his confirmation hearings.


That's not Scalia calling for stare decisis. That's Scalia mocking Roberts for putting on a false display of adherence to the principle.
7.9.2007 11:39pm
Cohen may be unsophisticated (mail):
Oh, stop. We're talking about a 96-year old opinion related to a broad statute that hasn't been materially changed by Congress since its enactment. There was really no excuse for the judicial intervention other than a policy-based one, which is a legislative act.
7.9.2007 11:41pm
Cohen may be unsophisticated (mail):
That's not Scalia calling for stare decisis.

So what? The question isn't whether we should have more stare decisis. The question is whether Roberts is dishonest, as per Cohen's quote. Scalia is calling Roberts dishonest and unprincipled. So is Cohen.
7.9.2007 11:42pm
wooga:
No, if an old decision was not based on a proper interpretation of the law, then overturning it is not "judicial activism" - unless you use Cohen's perverted definition of that term.

As long as the jurisprudence is sound, SCOTUS is free to go one way or the other, depending on how they might interpret an ambiguous phrase in the statute or Constitution. It's when the judge abandons any pretense of "interpreting the law" - and moves to "making the law" that its activism. Yes, the ENDS might be the same, but the MEANS to get there are what matter. For the ENDS, we need to complain to the people, through their elected representatives, to fix the law.
7.9.2007 11:45pm
wooga:
Cohen said: "The conservative justices claim to support "judicial modesty,"but reviews of the court's rulings over the last few years show that they have actually voted more often to overturn laws"

He's not simply calling out Roberts. He is lumping together the entire right side of the court, and he is saying they are activists because they overturn a lot of laws. Look, this second-to-last paragraph of Cohen's is in pretty plain language. He comes out and says what the ultimate example of "judicial activism" is - and Cohen is blistering wrong in his definition.
7.9.2007 11:48pm
wooga:
Now I need to go home... too long at the office screwing around.
7.9.2007 11:49pm
Ilya Somin:
Oh, stop. We're talking about a 96-year old opinion related to a broad statute that hasn't been materially changed by Congress since its enactment. There was really no excuse for the judicial intervention other than a policy-based one, which is a legislative act.

The opinion was in the field of antitrust law, which has been repeatedly changed by the Court in response to new research by economists for many decades. Congress has acquiesced to this practice for close to 100 years. In reversing the ban on resale price maintenance in response to nearly unanimous scholarly consensus, the Supreme Court was following long-established practice in this field of law.
7.9.2007 11:59pm
Ilya Somin:
Fifth, if you are truly persuaded by Roberts' and Kennedy's opinions "limiting" (or distinguishing) recent precedent, I am not sure what to say. I think Scalia put it best when he called Roberts out on it -- as being an intellectual fraud.

I agree with Scalia that those opinions are poorly written and argued. But that is not the same thing as saying that they "overturned" existing precedent rather than limited its scope. An opinion that offers poor reasons for distinguishing a precedent deserves to be criticized. But it should not be inaccurately characterized as "overturning" that precedent unless it really has reduced the applicability of the previous decision to virtually nothing (which the Roberts and especially Kennedy opinions didn't do).
7.10.2007 12:03am
cfoster (mail):
Keenan Kmiec (who once clerked for Alito) identifies and discusses five definitions of judicial activism in his comment,
THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM"
7.10.2007 12:08am
cfoster (mail):
7.10.2007 12:14am
John P. Lawyer (mail):
Ilya,
Well that ponit is separate and apart from the ones raised by Liptak's article and your post. I'll save that debate for another day.
7.10.2007 12:21am
AF:
A lot of people are complaining that Cohen is redefining the term "activism." That's true in that many people use it as a vacuous insult directed at liberal jurisprudence. The term needs redefining, if it is going to have any analytical content. Cohen's assertion -- which I haven't heard refuted -- is that by any analytically defensible definition of the term activism, decisions such as WTRL and the schools cases are activist.

Cohen's mistake is to think that by calling the Roberts Court activist he has somehow criticized its decisions. The problem with the Roberts Court, from a liberal perspective, isn't that it is activist but that it is wrong. But we do roll our eyes when people call us activist.
7.10.2007 12:25am
theobromophile (www):

Cohen is pretty plainly saying that if you use a precedent to say the opposite of what it means, the interpretive theory is absurd. To Cohen, it would be like using the 19th Amendment to hold that women lack the right to vote. Perhaps you disagree, but if Cohen is right, that certainly counts as activism. So his definition isn't invalid.


Except that, to make the proper analogy, the relevant case in question would be one where men were denied the right to vote. A man who sued under it, believing that the language, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex," means that he can vote if women can vote, would be correct in doing so. Furthermore, a Court that ruled in his favour would be correct (and non-judicially activist) in doing so.

The XIV Amendment has nothing to do with integration. I don't see those words in there. I do see "equal protection," which applies to everyone. A legislative statute which denies one race equal protection is no worse than one which denies another race equal protection: both ought to be overturned. Cohen misconstrues Brown as something which requires integration as the end in itself, not integration as a part of Equal Protection - and certainly not integration as "proportional representation of the surrounding district."

Reading Cohen's article made my head hurt.
7.10.2007 12:31am
Truth Seeker:
The Left is reduced to Orwellian newspeak. Since they can't win on the facts, they change the definitions.
7.10.2007 1:00am
Ilya Somin Wants To Revive The Lochner Era (mail):

The opinion was in the field of antitrust law, which has been repeatedly changed by the Court in response to new research by economists for many decades.



Except there was no new economic research. I am not unfamiliar with antitrust law. The textbooks on RPM have not changed.


Congress has acquiesced to this practice for close to 100 years.



This is a distortion. The ban on RPM has been around for close to 100 years, so Congress has acquiesced to the ban -- there wasn't a reversal in RPM to acquiesce to until Leegin.


In reversing the ban on resale price maintenance in response to nearly unanimous scholarly consensus, the Supreme Court was following long-established practice in this field of law.



The long-established practice in the RPM context was per se illegality. Your argument amounts to "If I cherry-pick some libertarian scholars, the Supreme Court should overrule its precedent on the basis of my policy preferences." That is akin to saying the 14th Amendment enacts Herbert Spencer's Social Statics.

It is Lochnering.
7.10.2007 1:31am
Ilya Somin:
The long-established practice in the RPM context was per se illegality. Your argument amounts to "If I cherry-pick some libertarian scholars, the Supreme Court should overrule its precedent on the basis of my policy preferences." That is akin to saying the 14th Amendment enacts Herbert Spencer's Social Statics.

This is silly. The decision in question was statutory, not constitutional, as was Lochner. Congress can overrule it anytime it wants to.

Moreover, virtually all serious antitrust scholars, including nonlibertarians, oppose a per se ban on RPM. And it is indeed a long-established practice in antitrust law for the Court to change its positions on various practices in response to economic research. Antitrust law is a kind of statutory common law. Perhaps it should not be that way, but Leegin is consistent with 100 years of judicial practice in that respect.
7.10.2007 2:39am
Public_Defender (mail):
That wasn't even true decades ago -- the opposition primarily came from people who didn't want their kids being sent far from home to go to school -- and it's certainly not true now.

Denying the racism behind many of the anti-bussing positions is utterly delusional. Some people chose to live racially lives, others were forced to. Neighborhood schools meant segregated schools, and white parents knew that.

I don't think everyone who opposes desegregation plans now is racist, but those white Boston parents weren't rioting over long trips. Those white parents in Little Rock didn't care what part of town the black kids came from, the white parents just didn't want their kids going to school with black kids.

When I was growing up, white parents would send their kids to private schools farther from home just to avoid sending their kids to a desegregated school. Racism, not long commutes, was the prime motivation behind opposition to bussing.

"Far from home" was only a problem when it meant going to school with black kids.
7.10.2007 2:54am
Lonetown (mail):
"Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks."

That's not Ann Coulter?

Racist overlords?
7.10.2007 6:57am
Xrlq (mail) (www):
It's worse than Ann Coulter. Over-the-top rhetoric and bad jokes are Coulter's schtick. Whatever one thinks of her brand of humor, or whether some of it is only half-kidding, she's in a totally different league from Cohen, whose equally over-the-top rhetoric is intended to be taken 100% seriously.

Cohen is a moron. His apologists will have to agree, as I define the word "moron" to include anyone who writes about the judiciary for the New York Times. Granted, that may not be a perfect definition of the word "moron," but it's at least as good as Cohen's definition of "judicial activist," and by all objective standards, Cohen meets it.
7.10.2007 9:37am
Conservative Activist Judge:
The 5th Amendment clearly states that one cannot be deprived of life without due process, therefore abortion cannot take place unless a mother has proven beyond a reasonable doubt why the fetus should be deprived of life. The government must provide public defenders for the fetus.
7.10.2007 10:23am
Smiley (mail):

"Now we have conservative ones, who use their judicial power on behalf of employers who mistreat their workers, tobacco companies, and whites who do not want to be made to go to school with blacks."


Who can even begin to take this seriously?


I, for one.

I find it incredible that the same justices who find an outrageous constitutional violation on proportionality grounds if State Farm has to pay out uncapped punitives find no problem in sentencing someone to 90 years for stealing a slice of pizza.

Or the same handful believe that suspending someone for holding up a stupid banner is justified regardless of free speech concerns, but trying to rein in a dummy corporation set up to circumvent congressional corruption laws isnt.

And lets not even get started about the "drugs exception" to the Constitution.

Its not the individual cases - its the pattern thats disturbing.

Criminal defendant - always loses.
Corporations - always wins.
State trying to protect its citizens (Patients rights? Mortgage lenders) - always lose.
State trying to screw its citizens (Unpaid overtime requirements?) - always win.
Immigrant - always lose.
Free speech for corporations - always win.
Free speech for individuals - always lose.
7.10.2007 10:34am
Paleo (mail):
This whole "judicial restraint"/judicial activism" charge has, in most instances, always been a crock. It merely means, you didn't like the outcome of the decision. The right goes around striking down actions of Congress willy nilly based, in part, on its "structural" view of the Constitution. Or reversing anti-trust precedent because it doesn't adhere to the consensus view of the University of Chicago Economics department. View which are no less activist than finding a "right to privacy." These are mere rationalizations for supporting the desired outcome. There are no practitioners of "judicial restraint" on the court today, and there haven't been since Justice Black left.
7.10.2007 10:39am
plunge (mail):
I notice Ilya still hasn't touched the issue of his claim that Cohen is wrong about "The [conservative] individuals and groups that have been railing against judicial activism." Ilya is very clearly wrong on this and Cohen is very clearly correct, and the rhetorical trick Ilya uses (switching subject of Cohen's sentence to the much much smaller group of conservative legal scholars/jurists and then discussing just their views without admitting doing so) to make his argument is pretty darn shady. Time for a correction or clarification, Ilya.
7.10.2007 10:55am
Goober (mail):
Yeargh. Can we please stop pretending not to understand that one's definition of "judicial activism" will pre-dispose the entire question of whether a court is activist or not? If you think striking down laws is all that activism means, you're going to come to radically different conclusions than if you think upholding laws that shouldn't be upheld is activist, too. And while there are certainly things to be said in defence of different definitions, it's hardly as though anyone's yet proved some definition of judicial activism to be objectively the correct one. Which means that to disagree with a characterization of the Roberts Court as activist because you hold to a different definition of activism is no more than begging the question. What's more, this is all patently obvious to everyone upon a second's reflection. (See Orin Kerr's quite thoughtful piece, to which he links in comments above.)

In short: This continuing debate about whether you're an activist, or instead whether I am, is stupid. A smarter debate would be on what activism should mean and why. After entertaining it for some number of decades, can we stop having the stupid debate now? Please?
7.10.2007 12:01pm
Cornellian (mail):
Cohen's critique, however, fails to rise above poorly substantiated name-calling.

"Poorly substantiated name-calling" pretty much describes conservative use of the term "judicial activism" by about 99% of its proponents, i.e. everyone other than a handful of serious legal scholars and even the latter group struggles for a workable definition that still accounts for retaining the supreme court decisions they like.
7.10.2007 12:16pm
Sebastian Holsclaw (mail):
"So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O'Connor's theoretical framework for abortion, campaign finance, and affirmative action."

O'Connor's 'theoretical' framework in those issues was so muddled as to be almost entirely useless. It consisted of making balancing tests with so many unguided parts as to make it almost impossible to have any idea whether or law would be Constitutional without asking O'Connor first. That isn't how law is supposed to work.
7.10.2007 1:55pm
whit:
"Immigrant - always lose."

do you mean ACTUAL immigrant or do you mean illegal alien?

huge difference.
7.10.2007 2:07pm
Joe Bingham (mail):
<3 Lochner. <3 <3 <3
7.10.2007 7:08pm
Bread&Butter:
To be blunt, Cohen has by far the better of the argument than Prof. Somin. Most of the "factual errors" involve either the picking of nits, or the erection of strawmen, and I do not believe it could convince anyone who didn't accept the conclusions already in the first place.

I can't help but notice that after criticizing Cohen's definition of judicial activism, no "superior" definition was offered. I guessing one does not exist, as most conservatives, even the allegedly "serious" ones, only define judicial activism by which outcomes they like and dislike. Striking down laws, particularly unconstitutional laws, is not wrong, but it is inherently activist, and the simple fact that few if any conservatives have the ounce of intellectual honesty to fess up. That's the central issues here after all; conservatives use judicial activism constantly but cannot admit so in public, or else be exposed as frauds.
7.10.2007 7:16pm
Ilya is wrong (mail):
This is silly. The decision in question was statutory, not constitutional, as was Lochner.

No, you're silly. The Sherman Act pushes up to the limit of the Commerce Clause.
7.10.2007 7:48pm
JWB (mail):
Someone may have pointed this out, but just in case:
The trouble with Cohen's argument is not that he's misrepresenting conservative activism, or that he's engaging in rather flip legal analysis, although both of those are true. He's merely engaging in the popular liberal tradition of the past 5 years or so of trying to hang conservative judges by their own rhetoric: "You bashed us for so long for being activist, and then look what happens, you get on the court and gut campaign-finance reform. Who's activist now? NYAH, NYAH. NYAH!"

The problem with liberals (like Cohen) who engage in the "activist" debate is that they're arguing constitutional issues on turf that's been defined by conservatives. If you're a liberal, and unless you're Mark Tushnet, you tend to like the idea of courts standing up for the little guy against organized state action and corporate power by interpreting Constitutional Rights broadly. Well, by definition, interpreting congressional individual rights broadly is activist, in that it is likely to involve the Courts more strongly imposing themselves on the Government as a whole. This is true whether the right in question is the right to due process, equal protection, bear arms, or corporate/election free speech. I would venture that, on the whole, liberals have a broader list of Constitutionally-derived rights they care deeply about than conservatives do. Hence, any argument about activism is eventually going to benefit conservatives, even if it does feel good to point out the occasional hypocrisy...
7.10.2007 7:56pm
wooga:
Bread&Butter said:

I can't help but notice that after criticizing Cohen's definition of judicial activism, no "superior" definition was offered. I guessing one does not exist, as most conservatives, even the allegedly "serious" ones, only define judicial activism by which outcomes they like and dislike.


Wow. You know, it would be intellectually honest if you would actually READ the comments, before proclaiming that nobody offered an alternative definition for judicial activism. For example, in just MY comments, I see that I repeated a definition three times:

"Put simply, the term "judicial activism" has always been understood - in legal academia - as the judicial branch assuming the role of the legislative branch."
...
The key is to articulate why the social policy is "incorrect." If it is "incorrect" because it conflicts with higher law, then striking down the social policy is not judicial activism. If the social policy is "incorrect" because you think the legislature made a poor value judgment, that's judicial activism.
...
As long as the jurisprudence is sound, SCOTUS is free to go one way or the other, depending on how they might interpret an ambiguous phrase in the statute or Constitution. It's when the judge abandons any pretense of "interpreting the law" - and moves to "making the law" that its activism. Yes, the ENDS might be the same, but the MEANS to get there are what matter. For the ENDS, we need to complain to the people, through their elected representatives, to fix the law.

You see, it is NOT about "outcomes," but about the means. Cohen is only concerned about outcomes. He wants the little guy to win, no matter what the law says. In the real world, the role of the judiciary is not to make the law, but to interpret it. The legislature is the one who is responsible for making good laws. You obviously agree with Cohen, as you said:
Striking down laws, particularly unconstitutional laws, is not wrong, but it is inherently activist, and the simple fact that few if any conservatives have the ounce of intellectual honesty to fess up. That's the central issues here after all; conservatives use judicial activism constantly but cannot admit so in public, or else be exposed as frauds.


Anybody who has been to law school, read a legal treatise, or read a scholarly legal article on the topic, knows that "judicial activism" DOES NOT MEAN "being an active judge." You could strike down 100 laws a day, and still not be a "judicial activist." Sure, "activist" and "active" have similar roots, but they are different words.

The term has a specific, historical definition. Just because you and Cohen try to redefine and pervert the definition, does not make your definition correct.
7.10.2007 8:14pm
wooga:
To put it simply, think about the difference between the words "reactive" and "active". Both involve some action, but neither quantifies the amount of action. Judicial "activism" is not a quantitative term, but a qualitative term. Cohen's definition is openly quantitative, and wrong.
7.10.2007 8:22pm
David M. Nieporent (www):
With that kind of behavior the Supreme Court becomes nothing more than an American Council of Guardians, stepping in to overrule legislatures when they make incorrect social policy.

That is Cohen's argument about the Roberts Court, believe it or not.
I don't believe it. And that's because I've read Cohen's column. His primary complaint is about the conservative members' treatment of precedent -- but precedent has nothing to do with legislatures. (Note that among his litany of complaints is that the Court failed to overrule a legislature in Carhart II.)
7.10.2007 10:00pm
David M. Nieporent (www):
Striking down laws, particularly unconstitutional laws, is not wrong, but it is inherently activist, and the simple fact that few if any conservatives have the ounce of intellectual honesty to fess up.
Striking down laws is inherently active, not "inherently activist." Activist has an established meaning. Cohen wishes it had another meaning so that he could turn it around, but it doesn't. "Pro-choice" doesn't mean the right to work for less than the minimum wage; it means the right to abort fetuses. Pointing out that NARAL isn't pro-choice because it supports wage and hour laws is not a gotcha. And pointing out that conservative judges are activist because they overturned precedents isn't one, either. The fact that a person interpreting a term by consulting a dictionary rather than history might come up with a different definition is irrelevant.

And for the umpteenth time, Cohen is not complaining that the conservative members of the court are "Striking down laws." He whines about Carhart II, where the Court upheld a statute against a pseudo-constitutional challenge. He whines about Leegin and Ledbetter, neither of which involved the Court striking down a law.
7.10.2007 10:15pm
Phutatorius (www):
You can't blame Cohen for trying to come to some principled conclusion about what "judicial activist" means. As best I can figure it, the term simply means "of or pertaining to a decision by a judge that I personally didn't like." But this isn't a useful definition, notwithstanding that it is apparently the definition that most conservatives use when they gather their torches and pitchforks and go judge-hunting.

For my part, I think the term is simply political rhetoric, like "family values," "protecting the institution of marriage," "cut and run," and everything else. Cohen's not wrong to try to ascribe some actual, useful meaning to the term -- a meaning that actually might hold the Roberts Court to the same standards as the Warren Court. He's just deluded in thinking it will take.

It's ideologues who developed this usage, and good luck prevailing upon them.

It was a nice try, certainly -- to suggest that the term means "overriding the will of the people as expressed democratically through action by the political branches." And one can certainly find a rather severe irony in judicial decisions from right-wing judges that are constantly invalidating left-wing government action, when these judges got their jobs by delivering the test oath by which they swore not to act like those nasty nasty predecessors who developed First Amendment law, desegregated schools, and invalidated laws against contraception. That is, I think, Cohen's point.

But Ilya, of course, will say that "judicial activism" is a term properly applied to courts that read things into the Constitution that just aren't there. Scalia and Thomas are principled people who have found a fair and consistent way to read the Constitution: by strictly reading its text and by conducting self-serving seances wherein they divine The Text's true meaning by asking John Adams himself what he would think about partial-birth abortion. There's nothing at all political about that. Right?

Oh, come off it. Puh-leeeeeease, as they say. The simple fact is that notwithstanding the surface appeal of interpretive theories like strict constructiionism and originalism, those who purport to endorse these theories DON'T apply them consistently, and for that matter they've obviously chosen these interpretive theories because in a whole heck of a lot of cases the theories provide ex post justificaiton for their already-decided-up minds on the political questions.

And for that matter, assuming that the conservative Just-Us-es aren't simply reanimating the rolling-over corpses of the Framers and trying to sell us a lousy ventriloquism act: why SHOULD the Framers' ideas of what the Constitution means have any more weight than mine, or Ilya's, or Justice Breyer's, or Cohen's, or Paris Hilton's? Aren't we all created equal, whether or not we wear the powdered wigs? And if some pecking order has to be devised, shouldn't there be a thumb on the scale for those of us who are alive? Nobody can put words in OUR mouths, after all (the First Amendment makes sure of that -- though, of course, maybe it doesn't: after all, didn't the infallible Framers go out and pass a Sedition Act within fifteen minutes of working up the Bill of Rights?).

One thing we can all agree on is that more than anything else, the Framers feared tyranny -- and yet this notion that they themselves are the final word on all constitutional questions makes for a tyranny of the generations. And don't come back at me about the amendment process. Those tyrannical Framers only had to vote on this thing, whereas we have to take what they've given us, or else jump through fifteen hoops of fire to get to a reasonable answer. Boy, they really stuck it to us. Imagine how Clarence and Nino would be howling if their social politics weren't so completely in lock-step with their counterparts in the eighteenth century.

But back to my point, it doesn't take much to see that the Emperors here have no robes. The problem is that they're your Emperors, and you've been enjoying their proclamations all year.

You can talk about the Tyranny of Five all you want, but the old Tyrannies of Five were erring on the side of individual rights. That sort of "tyranny" was something I could live with.
7.10.2007 10:35pm
therut:
After reading the above diatribe I do see how civil Wars happen and understand those fighting centuries old hatreds in the Middle East. After all we are so divided in just 200 and so odd years we can not agree on what is is.... Maybe it is time to seperate maybe without a war this time. I would welcome it.
7.11.2007 1:09am
Phutatorius (www):
Wow -- really? I thought I was making principled arguments about constitutional interpretation. Sure, I may be fervent in my belief, and I write with a bit of rhetoric, principally because I don't think people are standing up to defend what "activist judges" have done for this country, or to challenge the credentials, logic, or consistency of the other judges (whatever you want to call 'em) who are working to undo so much of it.

But I certainly didn't intend to rip our national fabric asunder and spark a civil war -- or even the peaceful secession you're contemplating. Nor did I imagine in my wildest dreams that my critiques of the views and work of four Supreme Court justices were consistent with what the constant cycle of vengeful and lethal fury we're seeing in the Middle East.

I'm happy to live in the same country with you, therut, even though we appear to disagree -- and perhaps neither of us will ever come to adopt the other's point of view. Isn't that why all this works? Isn't that what makes this country different, and worthwhile? Isn't our shared sense that this nation is something worth preserving and improving the fire that keeps our respective opinions warm -- whether or not we agree on how to go about the preservation/improvement effort?

Wow.

If you can't stand cooccupying this space with me, then I'm sorely troubled, because I fancy myself to be quite a reasonable person who respects differences of opinion. But so it goes. When this Partition happens, I'd like to have the State of Ohio (especially Jacobs Field and Ohio Stadium), Niagara Falls, downtown Manhattan (some of my favorite restaurants are there), and a decent amount of waterfront property. And a couple of national parks.

But again, wow . . . really?
7.11.2007 3:01pm
wooga:
You can talk about the Tyranny of Five all you want, but the old Tyrannies of Five were erring on the side of individual rights.


No... the old "tyranny of five" was erring on the side of individual rights which YOU favored, at the expense of individual rights conservatives favored. "Individual rights" include the right to bear arms, the right not to be killed without due process, the right to private property, the right to contract, the right to free association, the right to free exercise of religion, the right to speak offensive speech, and so on.

But David Souter wishes those rights were not in the Constitution, so he will make up new rights which "trump" my favorite individual rights.

Making new law = judicial activism. Interpreting current law, which sometimes involves striking down one of two conflicting laws, is not judicial activism. You can be a left wing loon or a right wing nut, and your interpretation of the conflict may be wrong. But if you restrain yourself to interpreting rather than creating, you are not engaged in judicial activism.
7.11.2007 6:03pm
Phutatorius (www):
First off: you make a good point, I suppose, about individual rights. My only ripostes are these: circumscription of the right to bear arms at least has a bearing on the rights and safety of others. Some reasonable restrictions have to be in play (see below). As for rights to private property, to speak offensive speech, to free association -- I'm with you. I have no use for that appalling "public use" decision, or for hate-crime laws. I'll even throw in free exercise of religion as a right worth protecting (though I'm not sure what you're driving at by listing it, unless you're complaining about the Establishment Clause cases, in which case two constitutional principles are in opposition (and it's not obvious that having a Christmas tree in a state house is a sine qua non of practicing one's religion) -- otherwise, the conservative Justices seem to be on board with restricting free exercise by "neutral laws of general applicability," and I'm not clued in to what other restrictions on free exercise you might be complaining about). Abortion is an issue I won't touch with a ten-foot pole. It's an intractable question, and I don't feel like I can defend either side on it. I can see your point there, and I would invite you to see mine on other purported "rights of privacy" that don't implicate the lives of others, like sodomy among consenting adults.

But on to business: yours would be a useful distinction -- interpretation vs. creation -- but it fails in practice.

"Congress shall make no law . . . abridging the freedom of speech." Distilling from that pronouncement a compelling interest/narrow tailoring test for content regulations: is that interpretation or creation of law? How about allowing time, place, and manner restrictions?

Should the Court strike down every restriction on speech in the U.S. Code? Including espionage laws, laws proscribing bomb threats and true threats against the President and Vice President? You and I both can agree that this would be the wrong conclusion to draw from the First Amendment. So we allow the Court to admit exceptions that nowhere appear in the text of the Amendment. I don't see how you can call that interpretation, and not creation.

Likewise, when the Court reads the First Amendment to preclude executive or judicial restrictions on speech, they're also making that up. All the First Amendment says is "CONGRESS shall make no law . . ." The Court is conjuring something out of nothing there: it's creation by interpretation (or interpretation by creation -- I'm not sure which).

Likewise again, we would all agree that the right to bear arms must admit some limitation -- or we'd have to let anyone walk around with WMDs in their pockets. Interpretation or creation of law there?

Incorporation of amendments against the states: interpretation or creation? The conservative justices, as well as the liberals, have bought in here.

My point is that all gestures at "interpretation" that don't lead to a result that is 100% in line with the strict text of the Constitution are essentially "creative." It's something we have to live with, and in most cases we do. Then, suddenly -- bam! -- a result we don't like, and we start complaining that 5 Justices just made something up.

I'm not saying you shouldn't complain. I'm saying that the complaints about "creating law" are hollow. Look deeper, and argue that the reasoning is flawed, strained, inconsistent with precedent, not reasonably related to what the Constitution is about. I'll listen, and in a lot of cases I'll probably agree with you. But just to level accusations of judicial activism is, as I see it, equivalent to resorting to namecalling in an argument. It's inflammatory and substanceless.

That's all.
7.12.2007 5:12pm