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Monday, July 11, 2005

Reconsidering "Judicial Activism"

Most of us are by now familiar with the Gewirtz/Golder piece in the New York Times last week arguing that the so-called conservatives on the Court, particularly Thomas, are the real activists, because they more frequently vote to strike down federal legislation.  (Indeed, some of us have even blogged about it.)

Orin Kerr posted a thoughtful response over at volokh.com in which he challenged the Gewirtz/Golder definition of "activism" and also urged us to take a second look at the data.  As Balkin put it,

[a]t 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."

With all due respect to Gewirtz, Golder, Kerr, and Balkin, I think they've all missed the boat a little bit.  This data isn't solely, or even mainly, about "activism."  And by putting framing this as an issue of "activism," we inevitably end up with an argument over what "judicial activism" means.

Instead, we should approach this data through the lens of the counter-majoritarian difficulty.

[More after the jump.]

Whatever you think about it, the counter-majoritarian difficulty has been the leading . . . , um, difficulty, for constitutional theorists for the past 50 years (at least).  Stated most simply, the counter-majoritarian difficulty asks how it can be legitimate for unelected judges to strike down the actions of elected officials.

It is my impression that self-defined judicial conservatives use the counter-majoritarian difficulty as ammunition against what they see as overstepping by so-called liberals.  See, for instance, Thomas's dissent in Lawrence v. Texas:

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ Id., at 530.

(Put aside that Lawrence involved state legislation, whereas Gewirtz and Golder focus on federal legislation.  The counter-majoritarian difficulty applies to both, and that seems to be Thomas's main rhetorical device in Lawrence.)

Indeed, this theme runs throughout Thomas's and Scalia's opinions, writings, and speeches.  They frequently declare that they are not free to substitute their will for the will of the elected branches, which is a restatement of the counter-majoritarian difficulty.

Therefore, the Gewirtz/Golder data is very significant, for it shows that Thomas himself, the champion of elected government, has voted to trump those branches on more occasions than any other Justice.  So just how devoted is he to judicial minimalism and restraint?  How much does he actually care about the counter-majoritarian difficulty?

And yes, I am aware of the caveat that we must scrutinize the decisions themselves to see how well grounded they are in the Constitution, for we all agree that clearly unconstitutional legislative acts must be struck down by the Court.  (Well, most of us agree to that, anyway.)  But when Thomas claims majoritarian/democratic legitimacy as a bedrock principle and uses it as a rhetorical and substantive device, it is more than fair to raise an eyebrow at this data.

The term "judicial activism" obscures far more than it illuminates.  If Gewirtz and Golder had focused on the counter-majoritarian difficulty instead, we could have had a more productive discussion about the very same data.

Posted by Hillel Levin on July 11, 2005 at 10:51 AM in Legal Theory | Permalink


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Tracked on Jul 12, 2005 8:49:09 AM


I had a long and none-too-coherent reply written, but I have deleted it. I think I will wait until the gender-race-marriage post is posted.

Posted by: Will Baude | Jul 11, 2005 10:03:46 PM

It is fair enough to consider the whole "levels of scrutiny" nothing more than a game. At the same time, the point holds: if you are going to consider anti-miscegenation laws a form of race-based discrimination (and obviously I do), then you have no choice but to consider marriage laws a form of gender-based discrimination. Indeed, I don't think one has to be a formalist or doctrinalist to get this. Prohibitions on same-sex marriage are laws based on gender. How controversial can that statement possibly be?

Put aside the whole "levels of scrutiny" inquiry and ask it this way: what do we generally think about gender-norm-enforcing laws? How about laws that require maternity leave, but prohibit paternity leave? Aren't we generally skeptical of such laws? I certainly am. And I see marriage laws as part of the same game. They are the ONLY remaining laws concerning marriage that hinge on gender. There's something . . . sketchy with that. Now, if you can come up with a really good reason why this form of gender discrimination ought to be acceptable, then there is something to talk about. But I just haven't heard it.

That's the realist version of the formalist point I made above.

Posted by: Hillel Levin | Jul 11, 2005 9:02:11 PM

I see. I was envisioning somebody who took the Marshallian view that at this point out levels of scrutiny are pretty much incoherent, so supported Loving without getting mired in so-called strict scrutiny, trying to tell the difference between Adarand Strict Scrutiny and Grutter Strict Scrutiny and Johnson Strict Scrutiny.

Posted by: Will Baude | Jul 11, 2005 8:43:06 PM

No. The first stage of the analysis is to figure out what scrutiny you are going to apply. Loving applied strict scrutiny. The "supremacy" argument was the next stage: if fails strict scrutiny because it is designed for no legitimate state purpose, yada yada yada, to wit, it was designed to maintain supremacy. (Unless you are proposing that the Loving Court actually applied rational basis scrutiny, and "supremacy" failed rational basis? I don't read it that way.)

So the first stage for consideration of heterosexist marriage laws is to ask what scrutiny to apply. If strict scrutiny applies to Loving, then intermediate scrutiny applies to marriage laws. Beyond that, we can discuss what the legislature's rationale is.

I will also add that there is a strong argument to be made that heterosexist marriage laws in fact do nothing other than maintain, if not male superiority, at least clearly defined gender roles. That may alone be sufficient to trump even rational basis scrutiny.

I think it can readily be said that the "it is for the kids" argument is not going to carry the day, and for two reasons: (1) No other marriage law of which I am aware is directed towards children; old people can marry; certified infertile people can marry; and so forth. (2) Even assuming it is for the kids, please keep in mind that same-sex couples have kids too. There is no rational reason to treat them differently from adopted children of heterosexual couples. That is, they are better off with two responsible parents than with one.

Posted by: Hillel Levin | Jul 11, 2005 5:52:40 PM

Okay. So what if one thinks Loving is rightly decided because on the relevant social facts the anti-miscegenation laws were "measures designed to maintain White Supremacy" Loving, 388 U.S. at 11, and therefore unconstitutional?

I take it one would therefore think that anti-same-sex-marriage laws were unconstitutional under the equal protection clause only if, on the relevant social facts, they were "measures designed to maintain (male or female) supremacy", yes?

Posted by: Will Baude | Jul 11, 2005 4:50:32 PM

I'll blog about this at some future date, but the quick snapshot on Loving:

If anti-miscegenation laws discriminate on the basis of race, and are therefore subject to strict scrutiny, then anti-same-sex marriage laws discriminate on the basis of gender and are therefore subject to intermediate scrutiny. My personal opinion is that anti-same-sex marriage laws might pass rational inquiry, but not intermediate scrutiny.

(I don't think that marriage is a special right. All of this falls under equal protection.)

Posted by: Hillel Levin | Jul 11, 2005 4:25:18 PM

All right. On to your tantalizingly substantive comment-- which part of Loving, exactly, would one have to agree with for same-sex marriage to have a strong claim? (The part where marriage is recognized as a special right, the part where facially symmetric statutes that segregate on the basis of race are nonetheless invalid, or the part where the social history and actual text of the Virginia statute was recognizes as not-actually-symmetric and designed to subjugate minority races, or something else entirely?)

Posted by: Will Baude | Jul 11, 2005 4:14:50 PM

Oops. THat should have been "Yes and no." Not "know." Whatever.

Anyway, it may well be the same for both; and then the question for both is how committed are you to majoritarianism, and how much do you think the legislator is a proxy for majoritarianism; and when and how should the Court override majoritarianism, and what tools should it bring to bear?

So yes, these are all the old questions; but how committed we are to majoritarianism generally, as well as how we define it, is going to be foundational.

(I've argued in previous posts that, when it doubt, we defer to the legislature. For me, that applies to Roe (the procedural due process argument is just really weak), Kelo (18th century takings clause jurisprudence just isn't clear), and Judith Miller's journalistic privilege (I haven't seen one). I'm not sure how it applies to same-sex marriage, which has a much stronger argument going for it than Roe's procedural due process argument, particularly if you agree with Loving.)

Posted by: Hillel Levin | Jul 11, 2005 3:57:04 PM

But I thought we established that the counter-majoritarian difficulty is no different in principle for constitutional construction than it is for old-statutory construction? I suppose there are people who don't think the Supreme Court should engage in statutory construction, but that would be pretty weird.

Posted by: Will Baude | Jul 11, 2005 3:48:40 PM

Yes and know. In order to figure out whether you want the Court to be making such decisions, you have to figure out whether you are bothered by the counter-majoritarian difficulty.

Posted by: Hillel Levin | Jul 11, 2005 3:36:45 PM

Okay, good. I confess that I don't really have any strong feelings about majoritarianism one way or the other. I agree that all of this just moves the discussion away from what is pro-majoritarian and anti-majoritarian and back to the ground zero argument about how the Constitution's meaning ought to be ascertained and by whom. (Which, it seems to me, is the productive place to move it.)

Posted by: Will Baude | Jul 11, 2005 3:34:29 PM

Nice move Will! :-)

(1) What you say only holds true if you are a committed majoritarian. You can have other theories of democracy that favor individual rights over majoritarianism, at least in some cases.

(2) I don't think I disagree with you. I think we should enforce every clause of the Constitution. There is, however, the little matter of figuring out what the clause means. To that end, I agree that the originalist interpretation is a valid way of looking at the Constitution. (Notice I didn't say *the only* valid way; I'm not committing myself to an originalist view.)

Posted by: Hillel Levin | Jul 11, 2005 3:23:54 PM


To the degree I ever disagreed with you, you have convinced me. I agree with you that the Court should not act as a court of legislative revision, cleaning up old moth-eaten statutes simply because they have now become unpopular. (If indeed they *are* unpopular, they can be repealed.)

However, if one believes that it is just as anti-majoritarian to strike down an old unenforced statute as it is to strike down a new and popular one, then I think one is moved to believe that originalist constitutional adjudication is never anti-majoritarian.

After all, the notion that striking down the statute in Griswold is anti-majoritarian (a conclusion I now agree with) is that the formal provisions of enactment and the subsequent retention by a majority or blocking minority of subsequent groups is enough to give the thing the stamp of "majority" approval, and "dead hand problems" be forgotten. All right, I agree.

But then it follows, doesn't it, that the same thing is true with respect to all provisions of the Constitution, adopted by majorities and retained by subsequent majorities or blocking minorities. If continuing to enforce an old and unpopular statute isn't anti-majoritarian, then presumably the exact same is true of continuing to enforce an old and unpopular provision of the Constitution (together with the supremacy clause). There is some room for disagreement about what constitutes "enforcement" of a provision of the Constitution, just as there is in statutory interpretation, but in theory we have just eliminated the counter-majoritarian difficulty for Constitutional provisions. Right?

Posted by: Will Baude | Jul 11, 2005 2:32:41 PM

If you are asking the court to engage in a headcount to act as a "fix" for the legislative branch, then you really DO want the Court to be a super-majority. It is Congress's job to figure out who wants what; not the court's. In fact, this is one of the reasons the courts are in a downward spiral of public trust.That's exactly right. Congress figures out what the public wants, and pass laws; the courts figure out whether the law itself - or its implementation by the executive - runs contrary to the Constitution.

One of the main problems with de facto constitutional amendment by SCOTUS is that it eviscerates the constitution's native amendment process. Why bother repealing the 18th Amendment - if it no longer meets the exigencies of society's "evolving standards of decency", we can just have the Courts say that it's invalid. If the Congress decides the people want a certain law, and the Courts invalidate it, that is an invitation to greater democratic involvement and action. Once the statute is properly invalidated as unconstitutional, Congress faces a choice - if this law requires a constitutional amendment, does the public want this law bad enough to amend the constitution? And I would submit that if, on second glance, they determine that the answer is "no" (see comments here), and decide to neither re-submit the law nor amend the constitution, then that is the constitutional machine functioning in an efficient and well-oiled fashion.

By contrast, if a law is passed which is unconstitutional on its face, and the court upholds that law, then we will gradually and incrementally shred the constitution page by page; we will suck the document dry of all meaning and authority. Q.v. comments here for a suggestion of how this applies to the Commerce Clause, for example. It is an invitation to quite the opposite of the smoothly-operating, well-oiled mechanism described above. It is an invitation to ever-increasing power, prestige and importance for the Supreme Court, and a direct course for judicial oligarchy - because don't be fooled: where the Courts can create constitutional rights (Roe, Lawrence), they can also take them away (Craig, Kelo). (But, see Jeff's comments last week: "constitutional rights are not the only kind of legal rights. When the court says the constitutution does not protect a right, that means it must be protected, if at all, through majoritarian processes"). If the government - if the majority - can simply abrogate those provisions of the Constitution it doesn't like, then the document is a dead letter. The concept of a written constitution has no meaning if that meaning is not set in stone.

"The Living Constitution" is a perfectly valid theory, and it might even be a pretty good way to run a country. But it is fundamentally and irreparably incompatible with the United States Constitution. If its proponents really think that the Constitution is such a terrible idea, that its adoption was fundamentally invalid and thus its provisions are in no way binding today, those people should be honest with themselves and their readers - and, for that matter, stop wondering where right-wing activists get the not entirely implausible idea that they hate America. For what is America if it is not the Constitution, what is America if not an ideal? There is no otehr country like this one; one may become a citizen of France, but one can never be French other than by birth; by contrast, one can become not only a citizen of the United States, but an American. But to do so requires a certain fidelity to first principles which is totally lacking in the advocacy of Judicial oligarchy.

Posted by: Simon | Jul 11, 2005 2:16:28 PM

Will, I think you are dead-right about a lot of things, but dead-wrong about this one. If you are asking the court to engage in a headcount to act as a "fix" for the legislative branch, then you really DO want the Court to be a super-majority. It is congress's job to figure out who wants what; not the court's. In fact, this is one of the reasons the courts are in a downward spiral of public trust. They spend too much time thinking about what the legislature really wanted or would want today, instead of making the legislature do its own dirty work. One answer: penalty default rules for legislatures.

Posted by: Hillel Levin | Jul 11, 2005 1:30:49 PM


I agree, but I still think there is something decidedly less anti-majoritarian about striking down, say, a Griswold statute than striking down a Roe statute. (Ditto for Miranda and Dickerson). I am not sure how much we ought to care about anti-majoritarianness, but if we do, I think it would help to have a variable more textured than simply whether an enacted piece of legislation exists; it would help to know, e.g., whether the piece of legislation is actually supported by a majority.

Posted by: Will Baude | Jul 11, 2005 12:37:26 PM


What you say regarding Dickerson is also true of Griswold (old statute that is not used and pretty much universally ignored--and perhaps even despised), and yet conservatives railed against Griswold as being over-reaching by the Court.

In my view, the committed majoritarian upholds such a statute (absent a damn good constitutional argument, which may or may not have been present in Griswold, but which was *certainly not* present in Dickerson according to Rehnquist). It isn't the Court's duty to figure out how the executive branch should react to an old piece of legislation. That's for congress and the executive branch to worry about. The thing is either constitutional or not; and the fact that today's congress may not have enacted it is hardly a reason to strike it down (excepting certain possible equal protection issues not present in this case).

Posted by: Hillel Levin | Jul 11, 2005 12:14:09 PM

Also a note re: Dickerson. The case is a good example about how even "majoritarianism" is sometimes unclear. The statute in Dickerson was enacted only a couple of years after Miranda, but it took decades for the statute for it to reach the Court because DOJ was mostly uninterested in pressing the issue and later Congresses were not interested in forcing it to. Someplace in the 90s Scalia scolded the executive branch for constantly trying to waive the statute and have confessions considered under Miranda instead and that may have made it harder for DOJ to keep the issue from the Court.

So in being "activist" by striking down a 30-year-old statute that had been largely ignored and unused even in situations where it clearly applied, the Court was both overruling a majoritarian branch (albeit an old one) while deferring to much of the practice of another.

[My understanding of the history of Dickerson is tentative, so if any of this is substantially wrong, please correct it.]

Even thornier problems arise when considering something like Raich, where the Court allegedly deferred to the majoritarian branch by deciding that it was "necessary" for the CSA to function that California's marijuana scheme be struck down. Congress had never weighed in on the spillover effects of CA's scheme one way or another, so the decision in fact pitted the majority of voters in California agains the litigating position of the Department of Justice. It is unclear which one ought to constitute the relevant majority.

And so on.

Posted by: Will Baude | Jul 11, 2005 11:59:17 AM

Thomas's rhetoric does not always run to majoritarianism-- it also runs to federalism and to basic constitutionalism. (That is why even in his Lawrence opinion he emphasizes that he sees no constitutional provision that stops the law. If he did, that would trump any concerns for majoritarianism.)

Indeed, Thomas's opinions are pretty short on majoritarian rhetoric, presumably for this reason. I don't know that anybody has crunched the state law numbers, which sounds extremely boring to me, although I briefly considered doing so to write a retort.

Anyway, I should also mention that the last sentence of the post, "we could have had a more productive discussion about the very same data" is clearly wrong. We might be able to have a productive discussion about a different but related or expanded set of data, but a set of data that focuses exclusively on up-or-down votes on statutory enactments by Congress without discussing either cert. grants or state laws is unlikely to produce productive discussion.

Posted by: Will Baude | Jul 11, 2005 11:46:25 AM

I should have put this in the body of my post, but let me add it now. Here's one example of the activism rhetoric confusing things.

Orin says:

"Consider the Dickerson case that upheld Miranda. The Supreme Court's decision not to overrule Miranda required it to strike down a 1968 federal law Congress had passed to thumb its nose at the Warren Court. It's hard to see Dickerson as an activist decision: The court adhered to precedent and confirmed that a law long thought to be unconstitutional was in fact invalid. However, critics include Dickerson in the list of cases that are supposed to prove the court's conservative activism."

Whether Dickerson is "activist" or not will depend on how you define activism: failing to adhere to precedent vs. failing to adhere to the statute. But if you consider it as a question of majoritarianism, the answer is quite clear: Dickerson is anti-majoritarian. And so it is fair for a critic of Rehnquist (who also toes the anti-counter-majoritarian line, though not nearly so much as Thomas or Scalia, I think) to attack him with the Dickerson opinion. Indeed, Dickerson is profound in this respect. For Rehnquist, the ONLY reason to uphold Miranda is precedent. For someone who believes that the Court should not aggrandize itself at the expense of Congress, adhering to precedent for the sake of precedent is the pinnacle of aggrandizement: We uphold our earlier opinion because WE SAID SO.

Posted by: Hillel Levin | Jul 11, 2005 11:43:09 AM

I expressed my position on this matter last week, and I don't feel that, on second glance, anything has changed. The article was then, and is now, a laughable attempt to find data to support the author's hypothetical question "how can we turn around the judicial activism label against those evil conservatives". Determining who is a judicial activist by counting how many statutes they overturn is akin to making a determination as to which is "better", McDonalds or Buca di Beppo, based on how many people eat there; it is a mind-bogglingly silly excercise, and a fundamentally invalid criterion.

Or, as I put it last week: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.(Emphasis in original).

Posted by: Simon | Jul 11, 2005 11:35:23 AM

Will: A very fair point. I'd love to see just such a comparison. Has anyone seen one?

But keep in mind two additional points:

1. Thomas may vote to uphold state laws more frequently than, say, Stevens because Thomas has a deeper commitment to federalism--rather than to majoritarianism. In other words, the real point at issue in Lawrence may have been one of federalism, and not majoritarianism. And yet Thomas's rhetoric runs to majoritarianism.

2. Assume that Thomas does more rarely vote to overturn state statutes than, say, Stevens because of Thomas's commitment to majoritarianism; but that Thomas votes to overturn federal statutes more frequently. Which way does that cut for the avatar of majoritarianism?

In any event, my two points still stand:
(1) when one regularly rails against the tyranny of the Court, it is fair to raise an eyebrow when that very person votes to strike down democratically-enacted statutes at a decent clip;

(2) this data is still better understood in the context of majoritarianism than it is in the context of activism. We all understand what it means to have a stronger or weaker commitment to majoritarianism. And we can all count. But "activism" is such a vague and amorphous term that it doesn't illuminate anything. If I'm to be proven wrong (and it wouldn't be the first time), let's do what Will suggests and prove me wrong on the majoritarianism front, controlling for "federalism" (somehow).

Posted by: Hillel Levin | Jul 11, 2005 11:32:21 AM

I think Orin Kerr was right. Someone should take a second look at the data.

Posted by: Orin Kerr | Jul 11, 2005 11:29:19 AM

I'm with Will. Particularly since (1) many of the instances where statutes are struck down probably relate to the federalism revolution, and (2) many of the cases the conservatives view as impermissible activism involve interference with state statutes (sodomy, death penalty, abortion, etc).

Posted by: Kaimi | Jul 11, 2005 11:17:23 AM

But, but, this very post (and your example) points out one of the biggest problem with the data-- the lack of any similar numbers for states. If it turns out that Thomas is the justice most likely to strike down federal *and* state laws, that would be *fascinating*, but Gewirtz and Golder give us no data there. So I am baffled as how you can then write "it shows that Thomas himself, the champion of elected government, has voted to trump those branches on more occasions than any other Justice."

It shows nothing of the sort.

Posted by: Will Baude | Jul 11, 2005 11:10:33 AM

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