In today's Los Angeles Times, Ed Whelan critiques the Miles/Sunstein study examining "judicial activism" on the Supreme Court. First, Whelan objects to focusing on review of agency decisions, as opposed to rulings on the constitutionality of state or federal statutes, because only in the latter case is the result of a court decision effectively immune from revision through the democratic process (or even by additional administrative action). Whelan also thinks there are methodological probems with the Miles/Sunstein analysis:
They classify rulings as "restrained" or "activist" without regard to any qualitatitive assessment of whether the ruling is correct. They implicitly presume that the work product of federal bureaucrats is politically neutral. . . . If an agency shows a bias in a particular direction, a neutral judge's decisions overruling that agency's actions would of course show a pattern in the opposite direction. Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction, the "Partisan Voting Award" that Miles and Sunstein would confer on Justice Thomas instead belongs to the agencies.
Miles' and Sunstein's statistics are also skewed by the fact that they cover the period from 1989 through 2005. Justices Ginsburg and Breyer were not on the court in the early years of that period, when the court was reviewing agency decisions from Republican administrations that account for about a third of the total cases. The relative partisanship that Miles and Sunstein find in Ginsburg's and Breyer's votes would surely have been much higher if Miles and Sunstein had used the same set of cases for all justices.
It seems to me that these critiques significantly undermine the force of the Miles/Sunstein analysis.
UPDATE: Patterico offers additional critiques of the Miles/Sunstein analysis here.
Related Posts (on one page):
- Whelan Rejoinder to Miles/Sunstein:
- How Useful is the Concept of "Judicial Activism"?
- Miles and Sunstein's Response to Their Critics:
- Miles/Sunstein Response to Critics:
- Whelan on Miles/Sunstein:
- Measuring Ideological "Activism" in Supreme Court Justices' Decisions to Overrule Regulatory Agency Actions:
- Which Justice Is Most "Activist"?
The next step (already started), is to determine what the results mean. For example, if you argue that the "judicial activism" of the conservatives on the court represents the liberalism of the agencies, how many agency decisions were those of Republican vs Democratic administrations.
More precisely, when a Supreme Court justice votes to overturn an executive branch decision, citing language in a relevant statute, the justice may in fact be exerting his or her judicial power to override the elected branches of government--or he or she may simply be defending the prerogatives of one elected branch (the legislature) against encroachment by another (an executive failing to accede to the legislature's expressed intentions).
It's only when a justice votes to overturn a statute on Constitutional grounds--after it has been approved by both elected branches of government--that we can be sure that he or she is trying to use the Supreme Court's powers to thwart the wills of the elected branches.
Is it possible that Miles/Sunstein are shining some light on one of the federalis' shibboleths, that liberal judges are overturning the democratic will of the people?
The second criticism potentially has more validity. It's best to use the same set of cases. However, the "would surely" comment is pretty bogus. That's assuming the conclusion of the study that is supposed to be a test.
These empirical studies are far from perfect, but they are an improvement on the subjective ideological analyses, which just show the bias of the commenter. Which is one reason why the ideologues hate them. They are harder to manipulate to reach the results you want to reach.
If I defined a home run as running to home plate, than suddenly changes the names of the home run leaders.
Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction
But why should we assume that agencies are captured by bureaucrats? I'm but a lowly law student with one semester of admin law, but isn't another side of capture theory that interest groups who deal with agencies on a daily basis might capture them as well? Certainly, that accusation has been made against many agencies under the current administration, though I'm not sure if it holds water.
It is absolutely true though that you can't rebut conservative legal arguments just by looking at admin law. That's just silly, as Whelan demonstrates.
Agreed.
Isn't the Constitution designed to "thwart the wills of the elected branches?" There's nothing in the First Amendement, for example, that says speech is protected unless Congress votes otherwise. There's nothing in the Constitution that says the President is Commander in Chief unless the Congress votes otherwise. Isn't it as "activist" to refrain from declaring a statute unconstitutional that clearly violates the Constitution as it is to declare a statute unconstitutional that clearly doesn't violate the Constitution?
Isn't that the point of the exercise? If one is going to make a serious attempt to provide a meaningful definition of "judicial activism" as it applies to agency action, isn't that going to have to be independent of whether the agency action is correct, lest "judicial activism" be reduced to nothing more than "I think the decision was wrong?"
The point is that is that it is difficult to assign labels such as activist or restraint based on ruling for or against an agency action with out some sort of analyis as to whether the decision was correct. - but does the analysis of the correctness of the decision also enter some additional bias.
Based on the above - is the real point obscure the meaning of activist or restraint such that the term has no meaning?
Well, who wouldn't? :^)
but I wonder if it would really make a difference in the result of the analysis.
I have no idea, but a simple count of votes to declare duly enacted laws unconstitutional shouldn't be hard to produce. I, for one, would love to see the results.
Isn't the Constitution designed to "thwart the wills of the elected branches?"
Well, unless you're an "intent originalist" (and I'm not), you don't really care what the Constitution was "designed" to do. As a judicial minimalist, I believe that the Constitution should be viewed as a description of the process by which laws are made, and Constitutional restrictions on laws as narrow protections of the democratic process, not as broad protections of vaunted values such as "freedom" or "equality". That's why I'm interested in the number of times Supreme Court justices vote to nullify democratically enacted laws.
I'm aware, of course, that my position is wildly unpopular, and that general suspicion of democracy is extremely widespread. (Democracy seems to be a highly counterintuitive idea.) But at least my definition of "activism" is clear and coherent.
Yes, of course, to both questions. Just to address Dan Simon's point, the issue is not the Constitution's "intent", it's the inherent effect of ANY written constitution. By definition, any law higher than majority rule thereby restricts majority rule. The Constitution is inherently anti-majoritarian.
Broad or narrow, process or value, the Constitution creates a Congress which is empowered to do A, B or C but not D, even if Congress wants to do D and even if D is very popular and even if the current Congressional majority was elected after campaigning on a promise to enact D. Hence the Constitution impedes democracy in that limited sense, presumably on the theory, which makes perfect sense to me, that a 51% percent majority should not always be able to do whatever it wants, and certainly not immediately. Why should a member of the 51% support that? Because issues come and go, and some days you're in the 51% and some days you're in the 49% and sometimes things that seem like a good idea at the time turn out to be not so good after a suitable period of reflection.
Some provisions are, some aren't. The word "majority" pears in the Constitution mopre than 10 times. When the Frst Amendment says that Congress shall make no law abridging the freedom of speech, it is anti-majoritian, because Congress cannot make such a law even by a majority vote. When Article I, Section 5, says that a majority of each house shall constitute a quorum to do business, it is majoritarian, because there is no super majority requirement to do business. When the Twelfth Amendment says that the electoral college shall choose a president by majority vote, it is majoritarian. No supermajority is required, nor can a decision be made by anything less than a majority. Msajorities are limited only when there is a clear and justifiable reason for doing so. Otherwise, the general rule is that the majority decides. I have no problem with this, nor do I think the framers did.
No, ANY provision is, by definition, anti-majoritarian in the short term. In a completely majoritarian system, there is only one rule: the majority rules. Thus, the majority could set the majority as a quorum or it could set some other number, greater or less. It could change that rule the next day. Or every day. Because of the Constitutional provision, though, the majority cannot make this decision.
What some rules can do, though, is preserve majority rule in the longer run. That's one effect of the 1st A, as is also true of some of your other examples.
Any other distinction falls apart under its own weight.
Some provisions are, some aren't.
Mark Field answered:
No, ANY provision is, by definition, anti-majoritarian in the short term. In a completely majoritarian system, there is only one rule: the majority rules.
Where is it written that the only choices are a constitutional system and a completely majoritarian system? France under Louis XIV had no constitution and it was not majoritarian. "L'etat c'est moi," said Louis, and he made the decisions. The government of the English colonies in America under George III was neither constitutional nor majoritarian. See the Declaration of Independence for details. Without a constitution, it is not the majority who rule, but the strongest. It is the genius of our constitution that it empowers the majority while at the same time it limits it. The one man one vote rule is majoritarian and required by the Constitution, except where the Constitution provides exceptions. To say flatly that the Constitution is anti-majoritarian is to distort its meaning and effect, which is more complex and more ingenious, all at the same time.
That's not written anywhere, of course. I'm simply pointing out the logical consequence of any written constitution, namely, that it prevents the majority (sometimes) from doing what it wants to at that moment in time. In that sense, any constitution, not just ours, is anti-majoritarian in the short term. In the long run, a constitution may very well enhance democracy by providing ground rules necessary for the continued operation of a majoritarian system. I think ours does pretty well at that.
Agreed. I was only making a narrow (and perhaps pedantic) point in response to a previous post. I agree that the Constitution does a great many things to enhance majority rule in the long run. In fact, I wish it did more.