One of the common criticisms made about the Supreme Court under Chief Justice John Roberts, especially from those on the left, is that the Court has been more “activist” in the years since Roberts took the helm than it had been in the past, even under the guidance of a Chief Justice as conservative as William Rehnquist. The examples commonly cited as evidence in support of this contention are cases such as Citizens United and this past term’s decision regarding the Voting Rights Act which opponents claim have been part of an effort by the Court to advance a conservative agenda rather than properly interpret the law. Most recently, this criticism was leveled by none other than Associate Justice Ruth Bader Ginsburg, who stated in an interview with New York Times Supreme Court reported Adam Liptak that the Roberts Court has been “one of the most activist courts in history.” As Liptak himself notes today in the Times, though, an examination of the Supreme Court’s decisions in the years since Roberts was elevated to the highest Judicial office in the nation do not show any real signs of the activism that its critics have complained about:
“If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,” Justice Ginsburg said in August in an interview with The New York Times. “This court has overturned more legislation, I think, than any other.”
But Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.
Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.
The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.
But these decisions are outliers when measured against the court’s overall record over the last nine years.
It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent.
Lee Epstein, who teaches law and political science at the University of Southern California, cautioned that it was dangerous to draw definitive conclusions from a fairly small number of decisions from the Roberts court. Still, she said, “claims about the Roberts court’s activism seem overwrought.”
Anyone who pays more than passing attention to the Supreme Court’s decision would have to agree with this conclusion. The reason why decisions like Citizens United stand out is because the number of cases where this Court has struck down Federal Law have been so small that it becomes noteworthy when it actually happens. One example of this can been seen in the Court’s decision in 2012 regarding the Affordable Care Act. If the Court had confined its decision solely to the main question that was presented in the case — whether or not the individual mandate could be found to be Constitutional under Congress’s power under the Interstate Commerce Clause — then it’s quite probable that the mandate would have been struck down and the remainder of the law would have been in serious jeopardy. Instead of doing that, though, Chief Justice Roberts followed a long standing rule of judicial restraint that says that if there is an argument under which a duly passed law can be upheld, then a Judge should uphold the law under that rationale. Rather than being “activist,” which is an accusation that many conservatives made at the time the ruling was handed down, this is a fundamentally conservative, restrained approach to the law that was once championed by none other than the late Judge Robert Bork himself. Similar examples of the Court upholding federal actions can be seen in the myriad of decisions it has handed down on the civil liberties issues arising out of the “War On Terror.” While there have been obvious civil liberties issues raised in these cases, on the whole the Court has been relatively restrained in ruling against the Federal Government in this area. Given this, the “activism” charge doesn’t stand up to the weight of statistical evidence that shows that the Roberts Court has upheld far more Federal (and state) laws than it has struck down.
One interesting thing about the definition of “activism” that Ginsburg and those who are sympathetic to her argument use is that it is, in the end, very selective in what it criticizes. For example, why is Citizens United, which struck down some relatively minor aspects of Federal Election Law considered “activist,” but a decision like Lawrence v. Texas, which struck down anti-sodomy laws nationwide, or United States v. Windsor, which struck down Section Three of DOMA, aren’t? I happen to think that the Court got the outcome right in all three cases, but one can’t deny that all three have in common the fact that they struck down all or part of law(s) that were passed by democratically elected legislative majorities. Now, obviously, there are significant differences between all three cases, but the point is that defining “activism” by the tendency to strike down laws duly passed by the legislature isn’t necessarily a relevant measurement. The fact that a law was passed by the legislature doesn’t tell us much o anything in the end, because it’s always possible for the legislature to act unconstitutionally. Arguably, all this definition really does is reveal the policy preferences of those using the label at a given point in time. Finally, its worth noting that if one uses the Ginsburg definition of “activism,” then the most activist Court in recent memory was the Warren Court, which I’m pretty certain is an era in the history of the Supreme Court that Justice Ginsburg approves of.
Indeed, as Liptak notes, there are some who have argued that the Roberts Court isn’t activist enough:
In a recent essay, “Why We Need More Judicial Activism,”Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. “Too much of a good thing can be bad,” she wrote, “and democracy is no exception.”
In a new book, “Terms of Engagement,”Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. “It is implausible,” he wrote, “to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.”
Mr. Neily urged the Supreme Court to be more active but rejected the phrase “judicial activism.”
“It’s inherently pejorative,” he said, favoring instead a new term: “judicial engagement.”
The federal appeals court in Atlanta adopted that nomenclature in 2011 in striking down the heart of President Obama’s health care law, saying, “the Constitution requires judicial engagement, not judicial abdication.”
Broadly, this is where I’ve long stood on this whole argument about “judicial activism” versus “judicial restraint.” When examining whether a Court is acting properly, the question shouldn’t be simply how often they strike down a legislative act, or a law passed via referendum such as Proposition 8. For a whole host of reasons, that definition ignores the fact that the legislature, and the people acting via referendum, can and do quite often get things wrong in the sense that they step outside the proper boundaries of their powers, or act in a manner that violates the rights of a particular minority. Instead, the question ought to be the extent to which the Court is performing the functions for which was created, which include not just interpreting existing law in the light of the Constitution (Federal or state depending on the circumstance) but also acting as a check against the Legislative and Executive Branches.
This is where the form of “judicial restraint” that Bork and others have advocated, which boils down to nothing less than Judicial surrender to nearly unbridled majoritarianism, gets things wrong. While Courts should give some due degree of deference to a law that has been passed by Congress or a state legislature, they should not be so slavishly willing to accept its validity that they reject out of hand perfectly valid arguments against those laws. Adopting the second position would essentially reduce Courts to nothing more than rubber stamps for democratic majorities, which is clearly not what the Founders intended the Federal Judicial Branch to be and, quite clearly, not what the Judiciary as it developed under the Common Law system that we inherited from Great Britain was ever intended to be. How one draws the line over whether or not the Judiciary is acting in its intended manner is, of course, not an easy question to answer, but it strikes me as a more useful way of looking at things.
The main reason to abandon the whole “judicial activism” v. “judicial restraint” nomenclature, though, is that it is, in the end, kind of worthless. Much like Justice Potter Stewart’s definition of the difference between pornography and obscenity — “I know it when I see it.” — the question of what is “restraint” and what is “activism” is really more of a reflection of the political and ideological bias of the person using the term than it is a useful measure of the how appropriate a particular ruling might be. I doubt, for example, that Justice Ginsburg would be talking about “activism” if it had been President Gore or Kerry who had gotten the chance to appoint replacements for Chief Justice Rehnquist and Justice O’Connor. Given that, as much as I respect her even when I disagree with her, it’s quite obvious that her criticism of the Roberts Court is more a reflection of her own particular biases than it is a fair criticism of what the Court has actually done since John Roberts became Chief Justice of the United States eight years ago.
