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About the Author:
Kermit Roosevelt III is professor of law, University of Pennsylvania Law School, and author of the novel In the Shadow of the Law
On April 8, 2005, critics of the Supreme Court gathered in Washington at a conference entitled "Remedies to Judicial Tyranny." Several speakers suggested that impeachment would be an appropriate response to some of the Court's recent decisions. One, Edwin Vieira, endorsed removal by quoting Stalin's slogan "No man, no problem." (Stalin, if not Vieira, had something other than impeachment in mind: the full quotation is "Death solves everything: no man, no problem.")
On April 24, 2005, and again on August 14, religious leaders held an event they called "Justice Sunday," intended to educate "values voters" about the threats posed by judges. In May 2005, televangelist Pat Robertson pronounced that judges "destroying the fabric that holds the nation together" are a menace "probably more serious than a few bearded terrorists who fly into buildings." The comparison is surprising, but in March 2005 the Pentagon released a document placing judges in the same company. Titled "TheNational Defense Strategy of the United States of America," the document warned that "our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."
What has provoked this sense of outrage against the judiciary? What is it that judges are doing wrong? And what should they be doing instead? The criticism is made with different degrees of sophistication, but at bottom the critics say the same thing. Activist judges, they claim, are substituting their own political preferences for the mandates of the Constitution. They are exercising will, not judgment; they are imposing their own values on society. In his statement announcing support for a Federal Marriage Amendment, President Bush warned that "the sacred institution of marriage should not be redefined by a few activist judges." Within the Supreme Court itself, Justice Antonin Scalia has criticized his colleagues for abandoning "text and tradition" in favor of "philosophical predilection and moral intuition." Perhaps most notable, a book-length denunciation of the Supreme Court's supposed activism recently spent a considerable number of weeks on the New York Times best-seller list.
That book is Mark Levin's Men in Black: How the Supreme Court Is Destroying America. I will refer to it frequently in the pages that follow, not because it is the best statement of the charge of activism, but because it seems to be the most widely read, and, as we shall see, it illustrates some of the weaknesses of the argument. Levin's assertions blend easily into the growing chorus. Activist judges, he writes, "have abused their constitutional mandate by imposing their personal prejudices and beliefs on the rest of society." They "make, rather than interpret, the law."
The charge of activism makes for good rhetoric. The imposition of judges' values on the rest of us amounts to rule by an unelected elite in defiance of the most basic principles of American democracy. The sound bites are easy to manufacture and hard to rebut. No one, after all, would argue that judicial activism is a good thing.
Precisely because the specter of government by judiciary strikes such a deep chord with Americans, its threat has been a near-constant refrain. The danger was raised by Abraham Lincoln, who warned that if policy questions were placed in the hands of judges, "the people will have ceased to be their own rulers." It was raised by Theodore Roosevelt, who denied "that the American people have surrendered to any set of men, no matter what their position or their character, the final right to determine those fundamental questions upon which free self-government ultimately depends." And it was raised by Theodore's cousin Franklin, who accused the Supreme Court of "acting not as a judicial body, but as a policy-making body" in striking down New Deal legislation. FDR offered a concrete solution-a plan to add new justices to the Court-and characterized his proposal as "action to save the Constitution from the Court."
Lincoln and the Roosevelts are generally considered good presidents, and the Supreme Court decisions they opposed have not fared well in the judgment of history. But the rhetoric of judicial activism has been deployed by those who ended up on the losing side of history as well. Sixty years ago, the enforcement of Bill of Rights liberties such as the freedom of speech against the states (rather than merely the federal government) was denounced as activism, but the proposition that the First Amendment binds the states is now embedded in our legal culture and generally considered correct. Much the same can be said of many of the Supreme Court decisions of the 1960s that broadened the constitutional protections for criminal defendants: they were intensely controversial at the time, and some critics remain, but on the whole those decisions are now considered both legitimate and unassailable.
The most striking example of a successful "activist" decision is probably Brown v. Board of Education, which held public school segregation unconstitutional. Almost no one nowadays disputes that Brown was correctly decided-indeed, Mark Levin argues that Plessy v. Ferguson, which endorsed the idea of "separate but equal," and which Brown overruled, was the activist decision. But in 1953, when it was decided, many leading legal scholars thought that Brown was pure activism: a morally and politically appealing result, perhaps, but not one that could be justified by reference to the Constitution. Brown's opponents took a still dimmer view; the segregationists' 1956 Southern Manifesto denounced the decision as "a clear abuse of judicial power."
What does this survey show? The Supreme Court has been called activist by good politicians and bad ones, by those whose judgment history would vindicate, and by those whose views are now marginal and discredited. It has been called activist by pro-Union Republicans in the 1860s, by Progressives in the 1920s, by New Deal Democrats in the 1930s, by segregationists in the 1950s, by conservatives in the 1970s and 1980s. And though the complaints about judicial activism are heard most frequently from conservatives in the early twenty-first century, liberals are rediscovering the phrase as well. Recent books on the subject argue that the Rehnquist Court displayed "activism on the right" and was in fact "the most activist Supreme Court in history."
In short, the Supreme Court has been castigated for activism almost continuously, from quite early on and by a wide variety of critics. If the charge of activism is to be anything more than a political talking point-and it should surprise no one that, frequently, that is all it is-we need some way of determining when the charge is justified and when it is not. We need some way of deciding whether a given decision is activist.
Most critics start out by saying that the decisions they call activist are wrong. But activism is more than error, and the next step is thus to argue that the error is so blatant that it cannot be a good faith mistake; it must be the deliberate imposition of the judge's own preferences in defiance of the Constitution. The plausibility of the charge of activism thus depends at least implicitly on the idea that there is a clearly correct answer (frequently called "the plain meaning of the Constitution") that judges are disregarding. And the basic reason that the term "activism" has no place in a serious discussion is that relatively few significant or controversial cases possess clear right answers.
That is not to say that there are never obvious answers to constitutional questions. The Constitution does contain some very clear rules. It provides that a bill becomes law only if it is passed by both houses of Congress and signed by the president. It sets minimum age requirements for holding elected office: twenty-five years for representatives, thirty for senators, and thirty-five for president. But these are not the constitutional provisions about which disagreement exists. Controversial decisions deal with the meaning of provisions such as the First Amendment's protection of speech and religious exercise, or the Fourteenth Amendment's guarantees of due process and equal protection.
The complaint that judges are departing from the plain meaning of the Constitution has very little force with respect to these sorts of provisions, for the words of the Constitution themselves convey very little information about how to decide particular cases. The guarantee of equal protection, for instance, surely means that the government cannot refuse some people the shelter of its laws-something the Reconstruction Congress was quite concerned about, given the failure of southern states to protect newly freed slaves from violence at the hands of nightriders and Klansmen. It has also consistently been interpreted to prevent certain kinds of government discrimination. But which kinds?
Almost all laws could be characterized as discriminatory. Even an ordinary criminal law-for instance, the law against burglary-discriminates between those who commit burglary and those who do not. And even if we exclude "discrimination" based solely on conduct, discriminatory governmental practices are legion. The tax code grants preferential treatment to homeowners and married couples. State universities discriminate among applicants based on test scores, grade point averages, geographical origin, alumni parents, and nebulous "diversity" considerations. States employ similar considerations when hiring employees. Even age or vision requirements for driver's licenses discriminate. Some of these practices may be constitutionally problematic, and some are surely acceptable. But the words of the Constitution do not tell us which is which.
The First Amendment's prohibition on laws "abridging the freedom of speech" is no more self-explanatory than equal protection. Does a law whose incidental effect is to make speech harder to engage in constitute a forbidden abridgement? What about a governmental choice to fund some speakers but not others, or to make funds generally available to private speakers as long as they do not express a particular disfavored viewpoint? What if the government itself imposes no penalties on speakers but allows other private individuals to sue them for damages? Is flag-burning speech? Is a donation to a political campaign? These are all important questions, but none of them is answered by the words of the First Amendment alone.
Men in Black offers several neat, if inadvertent, examples of the difficulties one encounters in trying to maintain that the plain meaning of the Constitution resolves controversial cases. With respect to the Equal Protection Clause, Levin takes the Supreme Court to task for holding that if married couples are allowed access to contraception, single people must be given the same right. "Nowhere," Levin writes, "does the Constitution require that married couples and single people be treated the same where contraception is involved." That is quite true as far as the words themselves are concerned-the Equal Protection Clause does not say anything about marriage or contraception. But neither does it say anything about race (unlike the adjacent Fifteenth Amendment, which specifically forbids states from denying the right to vote "on account of race"). The absence of any mention of race makes it hard to argue on the basis of the Constitution's words alone, as Levin later does, that "[t]he Fourteenth Amendment prohibits all state discrimination based on race, without exception."
With respect to the First Amendment, Levin claims that "[t]he framers could not have been clearer about what they meant or about their intentions" and goes on to denounce the Supreme Court for allowing some restrictions on campaign contributions. But whatever we may say about whether giving money to politicians should be protected activity, it is not speech in any obvious, literal sense-and it is farther removed from literal speech than expressive conduct such as burning a flag in protest.
Eventually, the argument that Levin's preferred results are commanded by the "plain meaning" of the Constitution reaches a peak of absurdity as he protests that the Court "went so far as to extend the term 'person' in the Fourteenth Amendment to include illegal aliens." Again, there may be strong arguments that an illegal alien should not be entitled to claim rights under the Fourteenth Amendment. But that such a person is not a "person" according to the plain meaning of the word is not one of them.
So a judge cannot simply enforce the plain meaning of the Constitution. This is not because the meaning is not clear. It is because the clear meaning exists at a relatively high level of generality. The Equal Protection Clause forbids unjustified discrimination; most Supreme Court justices would agree on that. But agreement that unjustified discrimination violates the Constitution is not agreement on much. It is not agreement about how specific cases should come out, for as Justice Oliver Wendell Holmes famously put it, general propositions do not decide concrete cases. It remains to be decided which acts of discrimination are justified and which are not. How to do that is a complicated issue, one which I will address at greater length in chapter 3. (In particular, I will consider the argument that supplementing text with history allows us to determine what the Constitution means for specific cases.) The point here is simply that the plain meaning does not get us all the way to a decision. The idealized opposite of judicial activism-what I call "direct enforcement" of the Constitution-turns out to be a fantasy. And if direct enforcement is illusory, identifying activism may be harder than we supposed.
To decide what judicial behavior is legitimate, we have to understand what judges actually do in deciding constitutional cases. That requires moving beyond the false dichotomy between activism and enforcement. But if judges do not engage in direct enforcement, what do they do? What I have suggested above is that judges can seldom take the plain words of the Constitution and use them to decide particular cases. Something is needed to mediate between the words of the Constitution and specific judicial decisions. Constitutional decision-making is going to be more complicated than simply applying some plain meaning.
Indeed it is. It is very complicated. Read some Supreme Court opinions and you will learn that, if little else. You will encounter tiers of scrutiny, five-factor tests, requirements of congruence and proportionality, and undue burden analysis. You will find a host of bewildering distinctions, between content-based and content-neutral regulations of speech, between hard and soft money, between intentional discrimination and disparate impact. All these and more await new law students and citizens bold enough to venture into the work product of their nation's highest court.
It will be very easy to see that Supreme Court decisions never just apply the words of the Constitution. Indeed, they focus very little on the words. What they focus on instead-what all the obscurities I have just mentioned are-is doctrine. Doctrine is the nitty-gritty of constitutional adjudication. It is the set of rules that the Supreme Court creates to take it from the grand language of the Constitution to the actual outcomes of particular cases. In deciding cases, the Court does not ask whether the governmental act it reviews is consistent with the meaning of the Constitution; it asks whether the act is consistent with the Court's doctrine.
Excerpted from The Myth of Judicial Activism by KERMIT ROOSEVELT III Copyright © 2006 by Kermit Roosevelt III. Excerpted by permission.
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