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Friday, April 16, 2010

Friedman and Rosen on "Activism"

In this New Republic piece, “The Battle Over the Court,” Profs. Barry Friedman and Jeffrey Rosen write, among other things, that:


Liberals during the Warren Court era also relied on courts to hand them victories that eluded them in the political arena. Of course, during the Warren era, activism usually meant asking the Supreme Court to bring a few state outliers into line with a national consensus—on racial discrimination, for example. By contrast, Roberts Court-era conservatives are urging unelected judges to strike down landmark federal laws that passed over their objections, at least some of which command broad national support.


I agree with Rosen (and many others) that the "activism" charge (from whatever ideological camp it comes) is often unhelpful.  The debate is not really about the question, "should judges invalidate acts of the politically accountable branches on constitutional grounds?" but rather "When, and why, should they do so?"  That said, I think the above-quoted statement -- even with the word "usually" -- does not characterize well the decisions that conservatives typically regard, and object to, as “activist.” 

Consider, for example, Exhibit A in the usual conservative critique of overreaching judges, Roe v. Wade.  That decision by the Court, which invalidated the abortion regulations of nearly every state, cannot be regarded as an effort to “bring a few state outliers into line.”  Nor can the Furman decision and its companions, in which the Court struck down every death penalty law in the country, or the many decisions during the 1970s and 80s that nixed legislatively enacted programs that provided aid to children attending parochial schools.  And so on.  No conservative critic of (liberal) judicial "activism" has Brown in mind.

My sense is that if one compares the allegedly “activist” (conservative) decisions of the Rehnquist and Roberts courts – say, Citizens United or the federalism-inspired rulings dealing with the reach of Congress’s regulatory authority or the states’ reserved sovereignty – to the decisions referred to in the paragraph above, it seems that the former involve less second-guessing of the considered judgments and commitments of the political community than do the latter.  Is the presence or absence of such second-guessing a helpful and reliable indicator of bad or good "activism"?  I'm not sure, but it does strike me as a relevant criterion.

Posted by Rick Garnett on April 16, 2010 at 05:16 PM in Constitutional thoughts | Permalink


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Interesting post, Rick. I know I'm late to this comment party, and on top of that what I have to say is not terribly relevant, but... why should that stop me now?

I just taught Locke v. Davey again in my law and religion seminar, and I am always struck by the fact that, if Justice Scalia had had his way, the Court would have called into serious question the constitutionality of at least 37 state constitutions (those with some form of Blaine Amendment). Not that I think the Blaine Amends are good (as I've written elsewhere), but I think his views in Locke have to register high on any measure of judicial activism...

Posted by: Ian Bartrum | Apr 19, 2010 3:40:38 PM

Could you say more about why Citizens United does less second-guessing of the political community than some Burger Court decisions like Roe and Furman? Presumably it is not because Citizens United has more popular approval than Roe, since that doesn't seem to be the case. At the time Roe was decided, there were national majorities polling in favor of it, which apparently continues to be the case (with something like 60+% against overturning the decision). As we keep getting reminded, Citizens United is opposed by 80% of the American public. So if polls are any indication of the will of the political community (as conservatives seem to have argued rather vehemently after the passage of the health care bill), this can't be doing the work.

Is the argument about the quantity of legislation overturned? If that's the measure, it would be worth considering how much state and federal legislation is jeopardized after Citizens United. Or would that not matter? I'm not entirely clear on the parameters of the argument.

Posted by: Micah Schwartzman | Apr 16, 2010 7:06:59 PM

Aren't you confusing the Burger Court's activism to the Warren Court's as referred to in the Friedman and Rosen piece?


Posted by: Josh | Apr 16, 2010 6:31:39 PM

There does seem to be a difference between the two Courts' activism. Most of the decisions of the Warren Court invalidated state measures, whereas the Rehnquist and Robert's Courts activism is directed at federal statutes that reflect the judgment (considered or not) of a coordinate branch of government. Exhibit A in my mind is United States v. Morrison, where the Rehnquist Court noted that Congress had engaged in extensive, documented factfinding that gender-motivated violence affects interstate commerce but nevertheless invalidated the Violence Against Women Act, not because Congress's finding was erroneous, but because Congress's factfinding was immaterial. Judicial activism directed against state measures strikes me as qualitatively different for the reasons James Madison gave (admittedly in defense of a different point) in Federalist No. 10. A young law student who ultimately became a law professor defended this distinction fifteen years ago in a student note that has, as I far as I can tell, languished unnoticed. See 69 NYU L. Rev. 963.

Posted by: Norman Williams | Apr 16, 2010 5:56:42 PM

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