A Primer on ‘Judicial Activism’

In his recent preemptive attack on the Supreme Court, President Obama invoked what he took to be the conservative critique of “judicial activism”:

I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this [the Court’s possibly overturning the Affordable Care Act] is a good example. And I’m pretty confident that this court will recognize that and not take that step.

Those were the least problematic of the president’s Rose Garden remarks, because they rang true in large part. Over the years, many conservatives have indeed criticized the courts—and the Supreme Court in particular—along just those lines. But it’s also true that the debate has changed over that period. To shed some light on such changes, and how the president got it wrong, ultimately, it’s worth a brief look at the underlying issues. (See here for a more thorough discussion.)

In brief, the complaint about judicial activism emerged from what many conservatives saw as the “rights revolution” that was brought about by the Warren and Burger Courts, starting in the 1950s. The most prominent case, of course, was 1954’s Brown v. Board of Education, but other decisions involving criminal law and procedure, school prayer, and, ultimately, abortion, to mention just a few subjects, all played into the conception of the Court as just another political branch, making up the law as it went along. And there was some truth to that, but only some, because the devil was in the details, especially the details of the Fourteenth Amendment on which so many of the Court’s decisions rested. Thus, many of those decisions overturned state laws, raising not only rights questions but questions about federalism as well.

With the onset of the Reagan administration, however, and the advent of the Rehnquist Court in 1986, the conservative critique moved to center stage. In the hands of Attorney General Edwin Meese, Judge Robert Bork, and many others, it became a call not simply for “judicial restraint” but for “originalism”—for applying the law as understood by those who drafted or ratified it. That was an important shift, because the focus was now more squarely on the law itself, not more narrowly on the behavior of judges.

But that shift helped to bring out a split that had been growing on the Right. Back in the 1970s a few of us had reservations about the very “rights revolution” thesis. After all, America was conceived in the name of natural rights, so why were conservatives, in their critique of judicial activism, so hostile to such rights—and, of special importance, so deferential to the state and federal legislatures whose acts so often violated them? To be sure, the conservative critique of the Warren and Burger Court’s was often on the mark, but not always. Moreover, weren’t those conservatives, professing to be opponents of big government, ignoring the fact that it was the political branches—during the Progressive Era, the New Deal, and the Great Society—that had given us big government?

And so, as the focus shifted to the substantive law during the 1980s, those of us on the libertarian Right kept pressing conservatives, as in Cato’s 1984 conference on “Economic Liberties and the Judiciary,” to recognize that the political vision on which their critique of the courts rested was fundamentally flawed. Nowhere was that more evident than in Judge Bork’s contention—his “Madisonian dilemma”—that our first principle as a nation is that in wide areas majorities are entitled to rule simply because they are majorities, while our second principle is that in some areas individuals are entitled to be free from majority rule. As I wrote in the Wall Street Journal early in 1991, that gets Madison exactly backwards. Madison held that our first principle is that in wide areas individuals are entitled to be free because they are born free, while our second principle is that in some areas majorities may rule because we have authorized them to. That is Madison’s vision: it gets the presumptions and the burdens of proof in the right order.

Later that same year, Randy Barnett and I each addressed a Bill of Rights Bicentennial showcase program at the convention of the American Bar Association, speaking on “The Forgotten Ninth and Tenth Amendments.” In so doing, we drew together both the rights (the Ninth Amendment) and the powers (the Tenth Amendment) sides of the Constitution and, in the process, tied them to both the Declaration of Independence and the Fourteenth Amendment, the amendment that in time would “complete” the Constitution by at last incorporating in it the grand principles of the Declaration.

Thus did the issues come to be joined on the Right, with help from many others, to be sure, both before and after. And the debate that has ensued—at Cato, the Institute for Justice, the Heritage Foundation, the Federalist Society and elsewhere, including in the courts—has slowly changed the conservative critique. No longer is the focus simply on “activism” or “deference”—the unstated assumption being that a court must have an extremely compelling reason before it overturns a “democratic decision.” That is the mindset that came from the New Deal’s “constitutional revolution” following Franklin Roosevelt’s infamous Court-packing threat, which enabled the massive government that conservatives today want to roll back. It’s the mindset that conservatives bought into a generation later as they sought to preserve state autonomy—and, too often, state tyranny. But neither it nor the conservative reaction to it was faithful to our first principles, as reflected in the amended Constitution. In a word, conservatives have come to recognize that there is all the difference in the world between judicial activism and an active judiciary, bound by oath to holding Congress to its enumerated powers and all officials, federal and state, to respecting our rights, enumerated and unenumerated alike.

And so we return to the president’s effort to rest his case on the conservative critique of judicial activism. Because that critique has largely evolved toward a more sophisticated, substantive understanding of our constitutional order, Obama can no longer hold a mirror before conservatives, charge them with inconsistency, and rely on their earlier arguments for his own anticipatory critique of the Court.

We’re now back to first principles and to a debate about what they are, which is where the debate should always have been. Roosevelt, after whom Obama fashions himself, read the Constitution as empowering government in ways that had been largely rejected for 150 years. That’s why those on Obama’s side invariably begin their arguments with “Since the New Deal,” as if that were a source of legitimacy. It isn’t. The Constitution was written in 1787, not 1937. As amended, it is the sole source of whatever legitimacy the government has, and it is the duty of the courts to determine what that law is, in the execution of which they must be actively engaged.