Judicial Activism, One More Time:
In today's New York Times, Yale Law's Paul Gewirtz and Chad Golder have an op-ed that remakes an argument that has appeared in various forms by various authors in debates over the courts in the last decade: the claim that the conservative Justices on the Rehnquist Court are the real judicial activists because they have often voted to invalidate portions of a number of federal statutes. Gewirtz and Golder calculate the rates at which each Justice voted to invalidate federal legislation since 1994. They write:
  We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
  One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.
  I addressed this argument in a 2003 essay in Legal Affairs in response to a closely related claim by Cass Sunstein. Sunstein claimed that the Rehnquist Court was more activist than the Warren Court because it had struck down more federal statutes than the Warren Court. I responded:
  While I agree that the conservative justices have not consistently embraced judicial restraint, this argument nonetheless strikes me as weak. First, using judicial invalidation as a proxy for activism suffers from an obvious flaw: If a legislature passes a plainly unconstitutional law, striking down the statute by applying established precedents reflects neither separation-of-powers activism nor precedent activism. (Cass Sunstein cures this problem by actually defining judicial activism as the act of invalidation, but, as noted earlier, I don't find this definition otherwise helpful.)
  Consider the Dickerson case that upheld Miranda. The Supreme Court's decision not to overrule Miranda required it to strike down a 1968 federal law Congress had passed to thumb its nose at the Warren Court. It's hard to see Dickerson as an activist decision: The court adhered to precedent and confirmed that a law long thought to be unconstitutional was in fact invalid. However, critics include Dickerson in the list of cases that are supposed to prove the court's conservative activism.
  Similarly, the focus on decisions striking down federal laws unfairly stacks the deck against the Rehnquist Court. The Warren Court's reform efforts focused primarily on invalidating state and local laws, rather than federal laws. Indeed, the Warren Court generally tried to expand the scope of federal laws such as Section 1983 and other federal civil rights laws. As a result, using judicial invalidation of federal laws as a quantitative measure of activism seems particularly unhelpful. Perhaps the more relevant quantitative measure would compare how often the Rehnquist Court and Warren Court have struck down legislative acts as a whole, or, better yet, how often they have overruled precedents. I suspect it would reveal a very different picture.
  It's also a mistake to assume that every Rehnquist Court decision striking down a legislative act features the conservative justices acting over the dissents of more liberal colleagues. Based on my review of the last Supreme Court term [October Term 2002 — Ed.], it's more often the other way around. I recently examined last year's Supreme Court cases looking for decisions in which the more conservative and more liberal justices disagreed about the constitutionality of existing laws or administrative acts. In cases that split the justices into relatively predictable ideological camps, I asked, which group voted to invalidate the other branches more often? The more conservative justices (William Rehnquist, Antonin Scalia, Clarence Thomas, and sometimes Anthony Kennedy and Sandra Day O'Connor) or the more liberal ones (David Souter, Stephen Breyer, John Paul Stevens, and Ruth Bader Ginsburg)?
  Roughly a dozen of the court's 83 cases involved fairly clear ideological splits on the scope of constitutional rights. (Many cases did not involve constitutional questions at all, and those that did usually failed to produce neat camps of left versus right.) Within the dozen or so cases, however, the more liberal justices favored striking down the other branch of government almost twice as often as the conservatives did.
  Jack Balkin adds some somewhat similar thoughts here. Thanks to Ex Post for the link.

Related Posts (on one page):

  1. More on Judicial Activism:
  2. Judicial Activism, One More Time:
I would like to see the breakdown of striking federal laws versus striking state laws, especially through s. 1983 or s. 2254 habeas. My suspicion would be that the liberal wing would be more likely to strike state laws, whereas the conservative wing would be more likely to strike federal laws.
7.6.2005 1:51pm
Noah Popp (mail):
I agreee, they need data on striking down state laws, not just federal. But it still is interesting nonetheless. And to the extent conservatives mean "anti-majoritarian" when the use the term judicial activism, then it does seem like striking down legislation is an appropriate proxy.
7.6.2005 1:56pm
Eric Anondson (mail):
I prefer a more narrow definition of "judicial activism" that doesn't consider overturning of laws. That of "amendment via judiciary". Regardless of how often the Congress is overturned as a measure of "activism", amendment via judicary is the narrow definition that <b>most</b> on the right, and the libertarians, have in mind when they think of judicial activism.

Maybe the phrase "judicial activism" should be forgotten in favor of "amendment by judge". Reinterpreting the Constitution differently from age to age such that it might as well be a functional amendment.
7.6.2005 2:11pm
frankcross (mail):
Well, striking down laws is a very imperfect measure but at least it is a falsifiable measure. Consequently, I think it's preferable to the opinions of commentators on who's more activist, which are subjective and reflect more about the authors than the Court.

Plus, I don't think it's as bad as made out, because I think it rare that Congress would pass an indisputably unconstitutional law, most are arguably constitutional at the margin. Hence, a decision to strike them down is relatively activist.

Now, I don't think judicial activism is at all a bad thing, but that's another issue.
7.6.2005 2:57pm
It's hard to come up with any definition of "judicial activism" that doesn't simply translate to "judicial decisions I disagree with."

For example, Eric Anondson postulates a good theory: Judicial activism means judges rewriting the Constitution. But whether someone is rewriting the Constitution or faithfully interpreting it is not a trivial question to answer. For example, the dissent in Kelo urged that Constitutional limitations be placed on the eminent domain power of states. To them, this was a faithful interpretation of the "public use" language in the Constitution. To those who disagree, it would be judicial activism in creating a new Constitutional requirement. Likewise, whether it is "activism" to hold that the word "liberty" in the Fifth Amendment includes a right of privacy is a question with more than one answer.
7.6.2005 3:01pm
Frank: Yes, it is a falsifiable measure. At the same time, it is not a useful measure, especially for a court with discretionary jurisdiction.

Steve: I think I come up with a pretty good definition of activism in my Legal Affairs piece. I argue that there are two kinds of judicial activism, precedent activism (changing the law) and separation of power activism (expanding the role of the judiciary). I explain the argument in the link in the post.
7.6.2005 3:14pm
T. More (www):
Prof. Cross and Steve, I disagree that one should adopt a bad measure on the grounds that it is at least an objective one; perhaps, following Balkin, we should just agree that "activist" doesn't capture what we mean by bad interpretation (though I argue at to the contrary).

I would say that we do know, sometimes, when judges rewrite the constitution. Those judges who, like Stevens in Kelo, acknowledge that "evolving" circumstances have morphed "use" into "purpose" (a word available when the Constitution was written) are being activist. In short, those who prefer their Constitution living, rather than quite dead, are activist. Now, there are reasonable arguments to be adduced in favor of "living constitutionalism," and so people who are activist in this sense are not "bad actors." But their view rejects the notion that judges are not really supposed to legislate (I know it purports not to, but at some point one must be honest that living constitutionalism requires Platonic Guardianship rather than "interpretation of laws written by others").

So when the President says he is against activism, it is not mysterious: he is not opposing judicial review, he is endorsing originalism/textualism and eschewing "living constitutionalism" and a common law approach to statutory interpretation. Those are debatable alternatives, and it is not dishonorable to be a fan of activism. Neither is it utterly mysterious to identify, however.

And of course, for clarity, I will grant that within any schema there are hard cases, and it can seem that "getting the wrong answer" just amounts to "disagreeing with me." But the existence of hard cases should not lead us to imagine that we cannot figure out an originalist approach from a non-originalist approach, and explain why we prefer one to the other.

Steve, two points: Not even Stevens quite claims that use meant purpose to the people who wrote use; he acknowledges that that the "purpose" reading came over time and has been around a hundred years (not more than 200). Second, the right to "privacy" is not found in the word liberty, of course, but in the "without due process of law" clause, which is why the substantive due process stuff is the clearest case of judicial lawmaking. The phrase has been reread, as H.P. Monaghan noted long ago, as "due substance." The due process clause has been read to say that some laws just cannot be passed for any reason. That is simply absurd on its face, given that the clause does not even purport to rule out the taking of life itself (WITH DP), but we have said that it does rule out (a) economic regulation (Lochner) and (b) exessive jury awards (BMW v. Gore) and (c) recognition of the fetus as a human being (Roe). Now any claim that that is "interpreting" liberty OR due process is patently false.
7.6.2005 3:26pm
T. More (www):
Prof. Kerr,

I agree with you about precedent activism; there is a challenge for originalism in this, exemplified in differences between Justices Scalia and Thomas in this past term in cases like Raich, Kelo (where nobody joined Thomas in voting to abandon Midkiff), and the like.

I have not made up my mind whether the rule of law will ultimately be better served by precedent activism or by Scalia's stronger respect for stare decisis, but it is certainly plausible to call Thomas's approach to stare decisis in many Constitutional cases "activist."
7.6.2005 3:30pm
frankcross (mail):
Well, I agree that a bad falsifiable measure is not worthwhile simply because it is falsifiable. But I would maintain that even a bad falsifiable measure is as good as any nonfalsifiable measure, which are commonly bandied about.

And I'm not sure it's that bad. If a law is struck down by a nonunanimous Court, it seems to me that there's a reasonable case that the law is debatably constitutional. When you add the fact that justices conform closely to a consistent ideology in the votes striking down laws, that makes it seem as if it is not just "the law" but some measure of activism that is operating. In addition, judges have lesser remedies such as interpreting the law in a way that conforms to their vision of the Constitution. Declaring the law unconstitutional seems clearly activist.
7.6.2005 4:23pm
Jonathan M (mail) (www):
I think judicial activism has terrible and misunderstood meaning.

Instead of saying activism is striking down laws, wouldn't it be more accurate to say that judicial activism is adhering to a liberal version of the rule of law -- that is, nonformalism? I think that nonactivists are mostly formalists - who strongly believe in the maxim non poena sine lege (no punishment without law). Thus, the sense people get of activist judges is not so much a populist-elitist thing in my opinion. In my opinion it has to do with whether one believes he or she can infuse equity/justice into a case or whether one adheres to stare decisis, the principle of fair notice, etc.
7.6.2005 7:03pm
Jacquelyn Finney (mail) (www):

The California Bar Journal, February, 1996 stated that U.S. District Court Judge Dickran Tevrizian proposed, promoted, and extrajudicially affirmed that California Rule of Court 989.3 is "consistent with the Americans with Disabilities Act", as applied to the California courts.

Does Judge Tevrizian's proposal, promotion, and extrajudicial affirmation of a state law subject to constitutional challenge in federal court mean that Judge Tevrizian and Ninth Circuit judges are "judicial activists," subject to recusal under 28 U.S.C. 455?

The U.S. Supreme Court was asked this question in Finney v. Nugent, cert petition No. 04-1653 filed on June 6. The legal case documents are posted on I am the petitioner, a former federal fraud investigator, who is totally disabled by polio and has been denied access to the California courts.

Jacquelyn Finney
7.8.2005 11:22am