THE MYTH OF JUDICIAL ACTIVISM

Vol. 17 No. 2 (February, 2007) pp.166-171

THE MYTH OF JUDICIAL ACTIVISM: MAKING SENSE OF SUPREME COURT DECISIONS, by Kermit Roosevelt III. New Haven and London: Yale University Press, 2006. 272pp. Cloth $30.00/£16.00. ISBN: 0300114680.

Reviewed by Matthew J. Franck, Department of Political Science, Radford University. E-mail: mfranck [at] radford.edu.

It seems the phrase “judicial activism” was first used by Arthur M. Schlesinger, Jr., in an article about the Supreme Court in the January 1947 issue of FORTUNE magazine (Kmiec 2004). Sixty years later, Kermit Roosevelt, who teaches law at the University of Pennsylvania, would like us all to stop using the expression. But his case against the expression’s use, and his proposed substitute categories of analysis, are both weak.

Not that I don’t understand, and sometimes share, Roosevelt’s exasperation with the promiscuous and often careless use of the phrase. It is sometimes true, as he writes, that “in practice ‘activist’ turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with” (p.3). But this has not always been true in the past, and it is not always true now. First, while “activist” has lately become a word mostly used in condemnation of judicial behavior, it was not always thus: Schlesinger, for instance, embraced activism as a positive good for some purposes. Nor is the phrase’s use, when pejorative, necessarily conclusory or a mere epithet. It may instead be the conclusion of an argument of considerable sophistication and depth regarding the proper uses of judicial power.

Of these two quite basic possibilities Roosevelt seems, between the covers of this book at least, to be completely oblivious (he even flatly denies the first of them on p.11). He tells us he wrote the book in hopes that it would be “illuminating and useful to non-lawyers,” which may excuse him from loading it down with all the annotations and detail that scholars would expect in a work aimed at them. But any ordinary citizen who picks up this book will be deeply misled about the state of debate in the scholarly community and in the judiciary itself. And some readers will be lulled into complacency about the habits and practices of the contemporary Supreme Court. Whether Roosevelt means to sing such a lullaby is more than we can know from this book. But that is one foreseeable effect on the unwary or beginning reader who comes to it.

“Judicial activism” is a contested term of art, to be sure. Roosevelt would like to jettison it because no “objective” (p.2) definition of it exists. I do not know exactly what he means by “objective.” Does he mean something like “operationalizable in empirical terms”? Or something softer, like “uncontroversial”? Either way, his claim would be more persuasive if he reviewed a fair sampling of the efforts to give it a definition. Instead, he makes a whipping boy of the lawyer-journalist Mark Levin, whose MEN IN BLACK (2005) he cites repeatedly, “not because it is the best statement” of the view he [*167] wishes to criticize but “because it seems to be the most widely read” (p.12). Mr. Levin can take care of himself, and it is no criticism of his popular book to say that it is not the last word on the subject. But Roosevelt would have done his readers better service if he had come to grips with some representatives of what he did take to be the “best statement” on the subject of judicial activism. If Levin’s book is as weak as Roosevelt says, then he has set himself too easy a task. If Levin’s book is not as weak as Roosevelt says – and I do not think it is – then he has dumbed down its argument in order to achieve a victory. Either way he is beating the stuffing out of a straw man, and whether the stuffing was provided by Levin or Roosevelt makes little difference.

As an instance of the straw man argument, observe that according to Roosevelt “[t]he idealized opposite of judicial activism” is something called “‘direct enforcement’ of the Constitution” (p.18). Now Roosevelt does not explicitly claim that the concept of “direct enforcement” is Levin’s – and it is a good thing, since I do not believe Levin ever uses that expression – but neither does he supply the name of anyone who does attach himself to it. The notion “turns out to be a fantasy,” says Roosevelt (p.19). Yes, but whose? It appears to be his own. In fact, ever since Schlesinger (apparently) coined “judicial activism,” the commonest term used for its opposite has been “judicial self-restraint,” another phrase used in that 1947 article. If “judicial self-restraint” appears anywhere in Roosevelt’s book, I missed it. And these matters of terminology are not unimportant. “Direct enforcement,” whatever that might be, sounds awfully simplistic. “Judicial self-restraint” does not.

Now with what would Roosevelt replace “judicial activism” as a useful substitute? His preferred distinction is between “legitimate” and “illegitimate” rulings of the Court. How can we tell the difference? “What I mean by a legitimate decision is essentially an appropriate exercise of judicial authority,” and “[i]llegitimate decisions, by contrast, have something improper about them” (p.37). How is this an improvement in sophistication over Schlesinger’s dichotomy between self-restraint and activism?

Roosevelt connects his “legitimacy” criterion to the alleged insight that “doctrine is what decides cases,” not the “plain meaning” of the Constitution (p.42; his emphasis). This would amount to saying nothing more than the commonplace that the Constitution requires interpretation – that is to say, thinking about – but there is something Roosevelt adds here of some interest. He argues that doctrines, by design or by gradual development, become self-contained, self-driving logical constructs that dictate the outcomes of cases without much looking backward to the Constitution they purport to be about. This is not a failing to be lamented, in Roosevelt’s view. It is just the way things are, of necessity, and all in all probably a good thing, since the Court’s doctrines are all about “the Court’s judgment that another governmental actor can or cannot be relied upon to [*168] identify and observe constitutional limits on its behavior” (p.43).

And so Roosevelt’s framework is something like this: Good doctrines, and the legitimate rulings that flow from them, will make appropriate judgments about when other institutions can be trusted to “observe constitutional limits” on themselves. The result will be appropriate degrees of deference and non-deference by the Court to those institutions, depending on the circumstances. Bad doctrines, by contrast, and the illegitimate rulings they produce, make inappropriate judgments about these matters, resulting in the Court wrongly deferring or wrongly failing to defer to the other institutions. After a fairly cavalier argument against originalism (as the wrong method for crafting doctrine) that wraps up Part I, of the book, Roosevelt turns in subsequent parts to the application of this framework to “legitimate” rulings that fall into the categories of “Easy Cases” (Part II) or “Hard Cases” (Part III), and then turns to cases that exemplify “Illegitimacy” (Part IV).

But before taking up Roosevelt’s examples, another word about his view of the Court’s proper business. Sound doctrine, Roosevelt says, is built on five considerations or “factors” (sketched in Chapter 2). First is “institutional competence,” or the Court’s best judgment of whether, say, legislative deliberation or adjudicative processes are most competent to address a policy question. Second is “the lessons of history,” in which the Court weighs whether a governmental actor is pursuing a legitimate purpose by considering whether such a purpose has animated the policy in question in the past. Third is “defects in democracy,” in which the Court asks itself whether just results are likely to ensue from majoritarian decision-making. Fourth is “the costs of error,” in which some assessment of the potential harms done by deference or non-deference is undertaken by the Court. And fifth is “rules vs. standards,” in which the Court decides whether compliance with its own doctrines is better achieved by hard-edged rules (e.g., MIRANDA warnings) or something fuzzier that gives other actors more latitude.

Readers may notice something about these ingredients of good “doctrine.” However useful they might be to a Court granted a roving commission to undo injustices, make ours a happier society, and generally to split babies in Solomonic fashion, they are none of them constitutional considerations in any way, shape, or form. They do not even represent categories of legal reasoning, properly speaking. These five “factors” in the construction of doctrine are in truth political considerations, involving the educated guesses of jurists about how they may achieve some vision of justice, however tenuously connected to the Constitution, without endangering the Court’s continued ability as an institution to pursue that vision. A constitutional understanding of when to defer and when not to defer to other actors would require the Court to consider what it means to wield “the judicial power” in the adjudication of “cases” and “controversies” that “arise under” the various forms of law that may come within a court’s purview. The [*169] Constitution speaks to us itself on what courts are “competent” to do and not to do, if we can learn how to read it. According to Roosevelt, one may infer, all such signposts back to the Constitution commit the fallacy of believing that the document has a “plain meaning” that everyone knows it really does not have, as to the interesting questions at least. There’s that straw man again. And having given him a hearty knock, Roosevelt presents us with a judiciary whose power to decide any and all constitutional questions is complete and unfettered, covered by the fig leaf of occasional “deference,” but ungrounded in any understanding of the Constitution whose terms the Court purports to enforce. In Roosevelt’s account, judicial review floats in mid-air, like Socrates in his basket in Aristophanes’ CLOUDS. What holds it up is nothing other than our liking its results more often than not.

Thus when we come to discussion of cases that take up the final two-thirds of the book, we are prepared to believe just about anything, and nothing at all. Roosevelt’s accounts of constitutional meaning are appropriately casual, since all he is looking for is a bare first premise for a doctrine. If they were not so casual, he might see that his “easy cases” are not all that easy. BROWN v. BOARD OF EDUCATION and LOVING v. VIRGINIA, for instance, are disposed of as “easily correct” (p.71) in a mere seven pages with the ipse dixit that they were about a “racial caste system” (p.68) that the equal protection clause condemns, just as it does all government policies that “treat some people worse than others without sufficient justification” (p.23; later this becomes “treating people differently based on hostility toward them,” p.94, as though these were the same thing). Roosevelt is surely right that nearly everyone applauds BROWN and LOVING today, but those who agree might still be embarrassed at the insouciance of his defense of them.

THE MYTH OF JUDICIAL ACTIVISM is liberally sprinkled with such “because I said so” assertions about the principles of the Constitution, brought forward simply to start the fun part of building a doctrine. So we learn in a discussion of the recent Guantanamo cases that “[t]he meaning of the Constitution is that the Executive may detain enemy combatants and not innocents’ (p.79). How does he know this? Later, in a discussion of the abortion rulings, we are told the due process clause means “the government cannot restrict your liberty in even the most trivial way unless it does so by means of a valid law” (p.120). This is perfectly circular, a fact confirmed shortly afterward by the assertion that “governmental action is valid only if it serves a public purpose, or promotes the public good” (p.123). And not just circular but – again – asserted without the slightest effort to persuade the reader that it is a plausible, historically grounded reading of the text of the Constitution. A final example: the establishment clause, Roosevelt tells us, “protects the individual from compulsion in religious matters” (p.144). As a reading of the establishment clause, that is one of several competitors, and perhaps not the best one. [*170]

The point is that Roosevelt may be right about this or that constitutional question, but he never actually argues that he is right – about anything with respect to the Constitution itself. The depths of pointlessness are reached when he comes to “Reviled Decisions” (Chapter 12), and cannot supply any persuasive constitutional reasons why DRED SCOTT, PLESSY, LOCHNER, and KOREMATSU were wrongly decided. Or perhaps not – KOREMATSU, he says, was “probably legitimate” (p.221) if perhaps regrettable.

And this brings me to a final point. From the beginning of the book, Roosevelt maintains that we should lighten up, take a forgiving attitude toward the Court, and realize that its doctrines will sometimes “underenforce” the Constitution and sometimes “overenforce” it. It is possible, in other words, for a decision to be wrong but “legitimate” in Roosevelt’s terms. It could wrongly permit unconstitutional behavior by other institutions, or wrongly condemn constitutional behavior by them, but still fall within his ambit of being largely immune from strident criticism by mere citizens.

To this argument one might respond with an observation and a question. The observation is that wrongly permitting unconstitutional actions to stand (something the Court can do rightly as well) is not as bad as wrongly condemning constitutional actions (something the Court can never do rightly). That is why “activist” and “self-restrained” remain more useful categories than Roosevelt’s “legitimate” and “illegitimate.”

The question is this: Whether the Constitution is underenforced, overenforced, or enforced “just right,” why does Roosevelt seem to believe that the Constitution is to be “enforced” first, last, and most authoritatively by the judiciary? The fact that this question does not even appear to interest him is the most signal failing of THE MYTH OF JUDICIAL ACTIVISM.

REFERENCES:

Kmiec, Keenan D. 2004. “The Origin and Current Meanings of ‘Judicial Activism.’” 92 CALIFORNIA LAW REVIEW 1441-77.

Levin, Mark R. 2005. MEN IN BLACK: HOW THE SUPREME COURT IS DESTROYING AMERICA. Washington, D.C.: Regnery, 2005.

Schlesinger, Jr., Arthur M. 1947. “The Supreme Court: 1947.” 35 FORTUNE (January 1947): 73-79. 201, 202, 204, 206, 208, 211, 212.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

DRED SCOTT v. SANDFORD, 60 U.S. 3093 (1857).

KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

LOVING v. VIRGINIA, 388 U.S. 1 (1967). [*171]

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

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