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Wednesday, July 06, 2005

"Activist" Conservative Justices

Court_1 Jack Balkin has an insightful post discussing a fascinating NYT op-ed by Paul Gewirtz and Chad Golder on so-called judicial "activism" by the Supreme Court.  I was about to post on the op-ed myself, but Balkin beat me to the punch.  I am very skeptical of the term "activism."  It has so many different meanings that it is difficult to catalog them all.  In the end, the term "activism" is merely an epithet for justices or judges whose opinions one disagrees with.  That said, one way to define "activism" is to see how frequently a justice votes to strike down Congressional legislation.  Here's what Gewirtz and Golder write:

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act "of great delicacy, and only to be performed where the repugnancy is clear." Until 1991, the court struck down an average of one Congressional statute every two years. Between 1791 (the court's founding) and 1858, only two such invalidations occurred. . . .

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions. That legislation has concerned Social Security, church and state, and campaign finance, among many other issues. We examined the court's decisions in these cases and looked at how each justice voted, regardless of whether he or she concurred with the majority or dissented.

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. . . .

Gewirtz and Golder conclude:

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.

Jack Balkin adds some terrific insights in his post.  Here's some of what Balkin has to say about the op-ed:

Gewirtz and Golder don't talk about judicial decisions that strike down state laws. That is because they argue that Congress, as the national legislature, has the greatest democratic legitimacy. But that begs the key question that still separates many liberals from many conservatives: federalism. For many conservatives, state decisionmaking is an independent constitutional good, and they prefer to have lots of issues decided differently in different states. So the fact that the more conservative Justices strike down lots of laws at the national level that impinge on the states does not suggest that they lack respect for democracy. Rather, it bespeaks a disagreement about what democracy means. It's not about the activism. It's the federalism, stupid.

That sounds like a pretty good rejoinder until you realize that the conservative judges on the U.S. Supreme Court tend to be fair weather federalists, and when an issue comes around that they really care about, they don't defer to state legislatures much either these days. The recent Kelo case is a good example; The liberal Justices preached judicial deference to local authorities and argued that legislatures could provide the best solution to the problem of overreaching by business interests. The more conservative Justices argued that courts should not defer and that there should be a single, nationwide rule prohibiting taking private property for economic development. So much for laboratories of state government. And don't get me started on Bush v. Gore.

Indeed, it would be well worth running the numbers on state cases since 1994. My guess is that you would find a more complicated story, with liberals striking down their share of laws, but with conservatives getting in their licks too. For example, liberals have voted to strike down laws involving regulation of abortion and homosexuality. On the other hand, they consistently voted to uphold state affirmative action programs and, as the recent Kelo case demonstrates, they have been quite reluctant to use judicial review in takings clause challenges. Conservatives have been on the other side; while decrying the use of the Due Process clause to protect abortion and homosexuality, they have wielded the Takings Clause with a vengeance, and used the Free Exercise Clause and the Free Speech Clauses-- liberally, we might say-- to protect religious groups, advertisers and campaign contributors. Conservatives also discovered how truly useful the Equal Protection Clause could be in attacking affirmative action programs and minority-majority districting.

Balkin concludes by observing:

At the end of the day, Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint. All this suggests that we should focus on who has the better interpretation of the Constitution, rather than on who is an "activist."

Agreed.  100%. 

Posted by Daniel Solove on July 6, 2005 at 11:02 AM in Constitutional thoughts, Daniel Solove | Permalink


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Apologies. Stevens delivered it, Souter joined the statement.

Posted by: Kira | Jul 28, 2005 11:49:27 PM

Justice Souter didn't write Kelo, Kira, Justice Stevens did...

Posted by: Simon | Jul 26, 2005 7:12:03 PM

A day after the Kelo decision was delivered, Freestar Media LLC submitted a proposal in the town of Weare, New Hampshire where majority opinion writer, Justice Souter, owns a farm house. They requested that the town board condemn the land and give it to them, as private developers, who promise to construct the Lost Liberty Hotel in its place. Their tax revenue would no doubt be higher than the reported $2,500 that Justice Souter paid in property taxes last year. It would create employment and attract tourism. The town has a website, and an economic development committee, which has identified its two main goals: 1) Encourage the formation of new businesses, and 2) Promote tourism. However, contrary to its stated goals and the legally sanctioned purpose of economic development, the town’s board turned down the proposal.

So much for poetic justice. Justice Souter’s influence in his community shielded him from his own ruling. No other rational justification can be found.

Thankfully, the legislative branch is now busy at work attempting to shield private property rights from the Supreme Court ruling. It seems that the two may have switched roles, with the House defending the Constitution, and the Supreme Court writing new laws.

I thought I saw Alice the other day! Or maybe it was Justice Souter –skipping in Wonderland, immune to and above the laws he passes.

Posted by: Kira Zalan | Jul 26, 2005 4:15:41 PM

The thing is that there is a fundamental misunderstanding here, and it runs throughout Thomas Keck's book, too. It is not Judicial Activism to strike down a statute. The act itself is neutral; it's a tool, simply part of the judicial power. It cannot be judicial activism to strike down a statute that actually is unconstitutional. A decision is an act of judicial activism if it uses that judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional.

It is certainly true to say that there are conservative activist judges - not many, but some - and it is also fair to say that many (if not most) conservatives do not want originalists on the bench as much as they want conservative activist judges. Scalia has pointed out that Conservatives are just as willing to grossly stretch (and go outside of) the constitution to further their own causes as liberals are. Indeed, substantive due process gained most of its momentum as a conservative tool to expand the power of the railroads, and both Scalia and Gonzales agreed with the judgement in Raich, which placed conservatives and originalists squarely at odds (as, indeed, did Ex rel Schaivo). In that matchup, of the court's two originalists, only Thomas stuck to originalism, and wrote one of the best opinions of his career to back it up.

Posted by: Simon | Jul 6, 2005 12:37:34 PM

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