No Double Talk on Judicial Activism Here, I Just Agree with Chief Justice Roberts
I want to respond in general to criticism of my blog post a few days ago about what is and is not “judicial activism.” I criticized a study discussed in a New York Times article that defined judicial activism as overturning state or federal laws, or overturning past Supreme Court precedent. I found this inadequate because overturning an unconstitutional law by a legislature is not necessarily “judicial activism.”
The question is whether the text of the Constitution, as informed by the intent of the Framers, allows legislatures to enact such a law or not. Judicial activism occurs when judges strike down a law that no text of the Constitution forbids the lawmakers to enact. My critics argue that I am merely saying that “judicial activism” means “I disagree with the court’s decision.” The critics say that I and others like me needlessly hurl the slur of “judicial activist” against judges we merely disagree with. I agree that reasonable people can disagree over the interpretation of a constitutional text and how it applies in a certain case.
However, there is such a thing as judges misusing their authority to impose their own public policy predilections on the people by court decrees that have no reasonable textual support in the Constitution. That is what I call, “judicial activism,” and it does exist. Here are some indicators of judicial activism:
(1) Judicial activism usually involves an “evolving constitution” so that something that once was constitutional suddenly becomes unconstitutional. Rather than seeing a consistent, settled meaning to the text, many judges believe the Constitution “evolves,” and “grows” so that a law a legislature could constitutionally enact one day becomes unconstitutional another day. See for example the question of whether states may impose the death penalty for 17 and 16-year-old murderers. States did so for centuries, and some changed their minds on whether to use this authority or not. The Supreme Court said that such a law did not violate the 8th Amendment in Stanford v. Kentucky, 492 U.S. 361 (1989), but then later said that the Constitution evolved, and now it is unconstitutional in Roper v. Simmons, 543 U.S. 551 (2005) (citing evolving state standards and foreign law, to boot).
The reason for such a change, courts frequently say, is that the modern day judge is more morally enlightened than the Supreme Court justices of the past, so the current judgment is “better” than the past judgment. This strikes me as a tad arrogant and not true in many cases.
(2) Judicial activism frequently involves courts finding a new “right” that lacks any textual basis in the Constitution. The Supreme Court announced a constitutional right to abortion in Roe v. Wade, 410 U.S. 113 (1973), but found that right not in any text of the Constitution (because none existed), but “emanations from the penumbras” (vibes from the shadows) of certain constitutional provisions. The justices used reasoning like, the Third Amendment right against the government quartering troops in your home, and the Fourth Amendment right against unreasonable searches and seizures, create zones of privacy with penumbras emanating from them that protect abortion. One could find a constitutional right to about anything if judges can stretch the Constitution that creatively. I realize that some people believe legalized abortion is a good public policy choice for a state to make, but don’t confuse the public policy dimension of abortion with the constitutional dimension of the issue. Whether a state should legalize abortion or not is the public policy question. But certainly no text of the Constitution prohibits states from limiting or outlawing abortion. No text of the Constitution confers a right to abortion. For example, John Hart Ely of Stanford Law School (who was no conservative and was highly respected) wrote in the Yale Law Journal, “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Even liberals who have intellectual honesty are embarrassed by the shoddy reasoning of Roe v. Wade, and the majority’s intrusive efforts to neutralize abortion laws it deemed bad public policy.
(3) Judicial activism sometimes completely ignores past precedent to interpret a constitutional provision in a way no court has ever done before. One notable example of this is the Supreme Court’s decision in 1962 declaring unconstitutional Bible reading in public schools. In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court cites no other Supreme Court decision as precedent for its extreme “separation of church and state” view of the Establishment Clause. The high court could not reference any of its other opinions because no such supporting precedent existed. The entire Engel opinion only cites one other Supreme Court opinion, and that is as the source for a comment about a statute passed in the early days of the Republic, not for any constitutional principle it announced. That’s it. When you’re making new law, the old law doesn’t support the “change,” so it doesn’t get cited.
(4) Judicial activism usually entails judges acting like lawmakers rather than judges acting as umpires. My colleague at ADF, Chris Stovall, reminded me of Chief Justice John Roberts’ remarks at his confirmation hearings last year, that judges should function as umpires and nothing more. Chris Stovall said “[a]n umpire should be calling balls and strikes according to the objective criteria of the strike zone, not because he likes one team better than the other, not because he thinks junk ball pitchers need a helping hand compared to fast ball power pitchers in general, not because he thinks it would be good for the game of baseball if Team X beat Team Y, and not for a variety of other supposedly ‘high minded’ big-picture reasons.”
Chris’ comments are right on. Judicial activism poses a threat to ordered liberty and government by the people. The people have agreed to a Constitution by a super-majority. Sometimes the people will violate that Constitution with laws passed by a simple majority. Courts can legitimately strike down laws as unconstitutional in those situations. However, judges who step in to correct perceived public policy “errors” made by the people and their lawmakers are usurping legislative authority if they discover new “rights” with no clear roots in the text of the Constitution.