On Judicial Activism

I found it especially ironic that the Pope foundation’s Biology major chose to critique my readings on Judicial restraint/activism as this is an area many conservatives seem to especially misunderstand.  The key tenet of judicial restraint is that judges should be restrained in making law and should defer, whenever possible, to the duly elected representatives of the people.  Now, in general, that’s a solid doctrine.  Of course, if those duly elected representatives of the people are using their majority power to systematically deny Constitutional rights to citizens based on their race, sex, etc., well, then, that’s where you obviously need “activist” judges to step in and remedy this (e.g., Brown v. Board of Ed, etc.)  But to be clear, using judicial power to overturn laws based on the judgement of the judges is activism (and again, there’s many a time I’m all in favor of that).  I think it is safe to say, though, if one is in favor of “judicial restraint” you most definitely do not want SC Justices overturning the signal piece of legislation of the current president.  It’s honestly hard to imagine an act of judicial activism more breathtaking (or threatening to the legitimacy of the court as a theoretically non-political body) than that.  Of course, that seems to be exactly what the conservatives on the Court are at least contemplating.  EJ Dionne:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

And Chait:

What made Rosen’s piece so shocking was that, for decades, judicial activism had been primarily associated with the left — liberal judges handed down broad readings of laws to expand rights, enraging conservatives who believed they were taking upon themselves decisions better left to democratic channels. Their complaints were not wholly unfounded — even if you support, say, abortion rights, as I do, the notion that the Constitution requires the right to an abortion is quite a stretch of judicial activism. The whole conservative legal and political movement had come to orient itself around opposition to judicial activism, which actually remains the term Republican politicians use to disparage liberal judges.

The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather…

Just remember this next time you hear any conservative rail against “activist judges.”

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About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

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