If the Supreme Court strikes down the individual mandate, would that be an example of judicial activism? It depends what you mean by judicial activism, I think. In my experience, there are several different things people might mean when they label a judicial decision as “activist.” Two of the meanings aren’t very helpful, but I think three of them are, and I think it’s worth keeping in mind the different meanings of the term when discussing whether a decision striking down the mandate might (or might not) be activist.
Here are the different things a person might mean when they accuse a Supreme Court decision of being activist. The meanings can overlap, to be clear, but it is helpful to keep them analytically separate:
(1) The decision was motivated by the Justices’ personal policy preferences or was result-oriented. In some instances, a decision is labeled “activist” when we think that the decision was based on the Justices’ own personal policy preferences or preferred outcomes. Of course, it’s hard for us to know what subjective motivated the Justices. But we have an idea that judges should follow law, not just strike down laws and practices that they don’t personally like. So when we think that a judge struck down a law in large part because he didn’t like the law as a matter of policy, or because he wanted one side to win and the other side to win for reasons not concerning the legal merits of the case, we might call the decision “activist.” This version of judicial activism stands in opposition to the rule of law; it expresses the fear that judges are just doing what they personally like. (A sample statement from the right: “Roe v. Wade is an activist decision because the Justices in the majority just tried to enact their pro-choice views.” A sample statement from the left: “The activist Justices in the Bush v. Gore majority voted as they did because they wanted Bush to be President.“)
(2) The decision expands the power of courts to determine the rules of our society. A second reason to label a decision activist is if it expands the power of the courts to define rules. If an area of law used to be a matter of legislative or executive discretion, but then the courts step in and define the rules themselves, we might call the decisions doing so “activist” in the sense that the judges actively took over an area relative to some prior standard of judicial deference. This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn’t necessarily a bad thing. But it is a second way of describing whether a decision is activist. (A sample statement from the right: “The Warren Court’s activist criminal procedure decisions largely eliminated the role of Congress in defining criminal procedure rules.” A sample statement from the left: “In Citizens United, the activist Supreme Court narrowed the legislative options Congress has in enacting campaign finance reform.“)
(3) The decision was not consistent with precedents. In other instances, a decision can be labeled “activist” when it is not consistent with precedent or overrules precedent. If everyone had one understanding of the law, and then the Supreme Court comes along and announces a new understanding, then the decision might be seen as activist in the sense that the Court is setting a new direction for the law. Once again, this can be a good thing or a bad thing, depending on what one thinks of stare decisis or whether one agrees with the prior precedents. But this is a third way of describing whether a decision is activist that is often seen in the public debates over the Courts. (A sample statement from the right: “In Roper v. Simmons, the judicial activists on the left were not bothered by the contrary precedent in Stanford v. Kentucky; faced with an adverse precedent, they just overruled it.” A sample statement from the left: “Conservative activists on the Court want to overturn Grutter and end affirmative action.)”
(4) The decision struck down a law or practice. This fourth interpretation of judicial activism simply looks at whether the court upheld the law or practice as constitutional or struck it down as unconstitutional. By this account, a decision is activist if it strikes down a law or practice (for whatever reason) and not activist if it upholds the law or practice. (Example from the right: “During the Bush Administration, an activist majority of the Court repeatedly invalidated the Administration’s policies in the war on terror; they should have showed some restraint instead.” An example from the left: “During the Rehnquist Court, the conservative Justices were the true judicial activists because they voted to strike down federal legislation more often than liberal Justices.”)
(5) The decision was wrong. A final interpretation of judicial activism is that the phrase just indicates agreement or disagreement with the court’s decision. An activist decision is a decision the speaker thinks is wrong, by whatever standard the speaker adopts; a decision is not activist if the speaker thinks the decision is correct. From this perspective, activism is just a statement of agreement or disagreement with the Court’s reasoning. (An example from the right: “Kelo v. New London is an activist decision; how can the Justices interpret the Takings clause that way?” An example from the left: “The Supreme Court’s recent strip search case is written by activist judges who just don’t get the Fourth Amendment.”)
These different understandings can overlap, of course, and I think the overlapping meanings explain a lot about debates over judicial activism. First and most obviously, people tend to use the phrase “judicial activism” most easily when most or all of the different meanings apply. But on the other hand, because there is no one meaning of the term, debates over judicial activism tend to run in circles because people just use different meanings of judicial activism in respond to critiques. For example, imagine a liberal analyst looks at Citizens United and proclaims it activist based on meanings #2 through #4, and perhaps #1, as well; A conservative wishing to defend Citizens United would likely counter with meaning #5. But as the politics of the case shift, so do allegiances to the different meanings. For example, if the same conservative and liberal switch from discussing Citizens United to Boumediene v. Bush, the arguments switch too: Now the conservative will raise meanings #1-#4 and the liberal will counter with meaning #5.
One response to these changing usages is just to give up and say that the term “judicial activism” is useless. But I don’t think that’s justified. We need language to evaluate what the Supreme Court does, and some of these meanings capture genuinely important dynamics about the role of the courts. In my view, meanings #1-#3 are useful ways of labeling conduct as activist or not: Especially if we specifically explain which meaning we have in mind, the terms allow us to have a useful debate about the proper role of the courts. On the other hand, I personally find meanings #4 and #5 pretty unhelpful. In my view, #4 isn’t helpful because everyone agrees with the basic notion of judicial review (yes, even President Obama). Meaning #5 isn’t helpful because no two people seem to agree on when a decision is “right” or “wrong.”
So would a hypothetical decision striking down the mandate be activist under meanings #1 through #3? Evaluating #1 is always tricky because it’s a subjective question. We can’t know with any certainty what the Justices subjectively wanted. But if the case ends up 5-4, with the Justices appointed from the party that supported the law on one side and the Justices appointed from the party that opposed the law, a lot of folks will assume that the decision is activist in the sense of meaning #1. That argument will be a lot weaker if the vote isn’t 5-4 (cf. debates over Bush v. Gore, where a common response of those who defend the case from accusations of activism is that parts of the case were 7-2). But if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common.
As for meaning #2, I think accusations that a decision striking down the mandate would be activist in the #2 sense would be pretty weak, at least assuming the decision tracked the arguments made by the challengers. The main reason is that the argument made by the challengers would be very easily circumvented in a future case. The challengers agree that a future Congress could reenact the same law simply by clearly labeling it a tax, or by structuring the law as an entitlement. As a result, the challenge to the mandate isn’t making it impossible to enact health care reform: It’s merely trying to invalidate the one way that Congress happened to have enacted health care reform, without blocking others. Further, a decision striking down the mandate wouldn’t in any way limit state governments. As a result, I don’t think a decision striking down the mandate would be particularly activist in the #2 sense.
On the other hand, I think a decision striking down the mandate would be justifiably criticized as activist in the #3 precedential sense. As I have explained many times before, I think existing commerce clause precedents combined with the presumption of constitutionality point pretty clearly in the direction of upholding the mandate: There’s a reason why it never occurred to any one that a mandate might be constitutionally problematic until this very controversial legislation was written, went through the legislative process, and was about to pass. It wasn’t until that late stage that many critics of the legislation came to the conclusion that the precedents actually pointed the other way (a judgment timed in such a way to suggest motivated reasoning is at work). So given that I read the precedents that way, I think a decision pushing the law in the opposite direction (however justified or unjustified) would be fairly labeled activist in the #3 sense.
So what’s the bottom line? In my view, it’s this: Depending on how the decision might be written, a decision striking down the mandate could fairly be called activist in some ways but not in other ways. It depends on which meanings of “activism” you find useful, and different people will disagree on which meanings of activism are useful.