Interesting that Larry Tribe says, below, “It’s almost embarrassing for anyone who is a serious thinker about the Constitution to bandy [the phrase ‘judicial activism’] about.” Let’s go back to the time of the summer 2001 Should Ideology Matter? hearings in the Senate Judiciary Committee. I was in the room, because Eugene and my then-boss Clint Bolick were testifying that day, and recall Larry Tribe saying:
This isn’t the time or place to debate the details of Bush v. Gore, a subject about which I have written elsewhere; I stress the case because it shows at least as dramatically as any case possibly could just how much may depend on the composition of the Court; how basic are the questions that the Court at times decides by the closest possible margins; and how absurd are the pretensions and slogans of those who have for years gotten away with saying, and perhaps have deceived even themselves by saying, that the kinds of judges they want on the Court, the “restrained” rather than “activist” kinds of judges, the kinds of judges who don’t “legislate from the bench,” are the kinds exemplified by today’s supposedly “conservative” wing of the Court, led by Chief Justice Rehnquist and supported in area after area by Justices O’Connor, Scalia, Kennedy, and Thomas.
Those are, of course, the five justices who decided the presidential election of 2000. They are, as well, the five justices who have struck down one Act of Congress after another — invalidating federal legislation at a faster clip than has any other Supreme Court since before the New Deal — on the basis that the Court and the Court alone is entitled to decide what kinds of state action might threaten religious liberty, might discriminate invidiously against the elderly or the disabled, or might otherwise warrant action by Congress in the discharge of its solemn constitutional power under Section 5 of the Fourteenth Amendment to determine what legislation is necessary and appropriate to protect liberty and equality in America.
That last sentence made my (and some of my Institute for Justice co-clerks’) blood boil when we heard it.
Now note that Tribe isn’t actually coming out and saying that the conservative justices are activist. (That would be, after all, “almost embarrassing.” Almost.) He’s just mocking the conservative usage that says liberals are activist while conservatives aren’t — so he may plausibly be able to say that he’s just showing how conservatives are wrong by their own lights, not endorsing an alternative view of activism.
But . . . you read the excerpt above (the long sentences are typical of Tribe) and you judge. Most conservatives don’t say that activism has something to do with the number of Acts of Congress you strike down; they say, as Randy is quoted as saying below, that the Court is enforcing stuff that isn’t in the Constitution or not enforcing stuff that is. Does Tribe misinterpret conservative views of activism so seriously? Or is this his own (“almost embarrassing”) view of activism?
P.S. I should mention, before someone writes in on this, that perhaps Tribe just isn’t “bandy[ing]” in this case, so we’re saved from almost embarrassment.
More seriously, the best reading of Tribe’s last sentence is probably that striking down laws generally isn’t activism — the activism is just the Supreme Court’s assertion that only it gets to judge whether an Act of Congress is a legitimate use of Congress’s Section 5 power. So, on my reading of Tribe’s view, he really is saying that the Supreme Court is being activist because they’re using a (in his view) nonexistent power to second-guess Congress on whether it’s using its Section 5 power properly.
Still, if Tribe is trying to show the conservatives are wrong by their own lights, this doesn’t work, because my impression is that conservatives have never particularly believed that Congress got to be its own judge for Section 5 compliance. And if Tribe is trying to say that the Justices are being activist in his own view, then in light of his more current quote (from the top of the post), he really ought to be saying instead that the Justices are just wrong on doctrine.
UPDATE: A reader writes in to remind me of a passage in Laurence Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 Harv. L. Rev. 170, 300-301 (2001) [yes, that’s a correct jumpcite!], where Tribe writes (paragraph breaks added):
Bush v. Gore [should be read] to counsel against judicial activism in cases in which such textual and structural guidance as the Constitution provides points toward permitting the political branches to resolve the dispute under procedures at least sketched, if not fully spelled out, by the Constitution itself and by statutes or treaties promulgated pursuant to it; in which there is no clearly threatened violation of any constitutional right that the political branches are structurally incapable of, or indisposed toward, protecting; in which taking jurisdiction away from the political branches in the circumstances presented would yield no coherent remedy for whatever right is said to be threatened; in which the contemplated judicial action would serve to entrench the power of the political party or group seeking such action rather than to protect relatively powerless individuals or groups from the entrenched power of others; or in which the judicial action in question would advance the interests of the controlling majority on the Court in some extrinsic way, as by assuring the nomination of like-minded replacements.
Bush v. Gore fails on all five counts.
Alternative approaches to filling in the blank could range from foolish non sequiturs to tragic extrapolations. The counsel against activism could be universal, suggesting a “go slow” posture on essentially everything. The counsel could be politically polarized, suggesting passivity with respect to either “liberal” or “conservative” causes. Or it could be tied to whole chunks of the constitutional architecture, urging passivity, or even total withdrawal, with respect to structural matters such as those bearing on the separation of powers and/or federalism or with respect to all rights whose derivation entails going beyond the freedoms or privileges expressly enumerated in the Constitution’s text and reflected clearly in its history, such as those rights that rely on structural or philosophical inferences, whether called penumbras (usually by liberals) or postulates (usually by conservatives).
In other words, Tribe doesn’t think there’s anything wrong as such with using the phrase “judicial activism.” My reader writes that “he, presumably like most ‘serious thinkers’ about the Constitution, thinks there are situations in which the phrase is useful and situations in which it is not.”
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