Commentary

Needed: Active Judges — Not To Be Confused With Judicial Activists

This article originally appeared on National Review Online on November 14, 2002.
Isn’t it wonderful how liberal Democrats, just trounced in an election, proceed immediately to tell the winners how to govern? Obsessed with governing — with running other people’s lives — they simply can’t let go. It’s as if their party were never out of power.

The area of governance that most concerns them at the moment, of course, is the judiciary, for through that branch modern liberals have come increasingly to govern — and it’s slipping away. Thus the lead editorial in Sunday’s New York Times, “Defending the Judiciary,” which followed by a day a Times op-ed by the University of Chicago’s Cass R. Sunstein, “Taking Over the Courts.” Both were alarmed “that it will now be harder to block ideologically extreme nominees to the federal courts,” as the Times editorial put it, that we might be in for “a new program of judicial activism,” said Sunstein.

A little over a year ago, in a pugnacious op-ed in the Washington Post that called on the Senate Judiciary Committee to “litmus test” Bush judicial nominees, Democratic Party elder Joseph Califano Jr. made it clear just why the courts were so crucial to the liberal agenda — why “who sits in federal district and appellate courts is more important than the struggle over the budget” or virtually anything else going on in Washington today. It’s because the courts are “increasingly powerful architects of public policy,” he said. Indeed, political activists have learned “that what can’t be won in the legislative or executive may be achievable in a federal district court where a sympathetic judge sits.” With seeming favor he concluded that the courts are “setting national policy” from the bench.

Califano’s right about that, of course. But he and his party have no one to blame but themselves for the mess they’re now in — with the prospect of conservative judges reversing course — for they’ve long urged judges to place politics over law. Yet if the Bush judges do their job well, they’ll actually be restoring the rule of law. To show that, let’s start with a quick history.

The Constitution established a limited federal government. What else could its principal author, James Madison, have meant when he wrote in Federalist 45 that the powers of the new government would be “few and defined”? The Civil War Amendments perfected the design by affording federal remedies against state violations of individual rights. And there things stood until the Progressive Era, when the political activists of the day sought to bring us better living through bigger government, mostly at the state level. An active judiciary, in the name of law, stood rightly athwart that effort, for the most part. With the New Deal, however, political activists shifted their focus to the federal government-only to be thwarted again by a judiciary actively enforcing the limits the Constitution placed on political power.

Bristling under that constitutional yoke, Franklin Roosevelt unveiled his notorious Court-packing scheme shortly after the landslide election of 1936. The ploy failed in Congress, but not with the Court, which saw the light as it made the famous “switch in time that saved nine.” Thereafter we had a passive Court, but one engaged in “judicial activism” all the same. Ignoring its duty to actively apply the law, the Court instead deferred to the political branches. In doing so it found powers nowhere granted while ignoring rights plainly meant to be protected. That is judicial activism, plain and simple, for it ignores the law in favor of a politically correct result.

It was only a matter of time, however, before the surfeit of legislation that was pouring through the floodgates the Court had opened found its way to a Court now asked to make sense of the mess the political branches were making of things. Thus, a second form of judicial activism arose: judges served, in effect, as interstitial lawmakers and more. But that wasn’t the end of it. For the political activists who saw law not as a set of rules within which people pursued their private ends but as an instrument of social engineering didn’t always win in the political branches. When that happened, as Califano said, they turned to the courts, hoping to find there a “sympathetic judge.” Thus, a third form of judicial activism came to the fore, with judges deciding cases by consulting “evolving social values,” which invariably meant the politics of the day.

Conservative reaction, slow to come, took two forms. Initially, conservatives railed generally against “activists” on the bench, demanding that they defer to the political branches. In time, however, the limits of that view became clear. It was the political branches, after all, that had given us the Leviathan that was the ultimate concern of most conservatives. Moreover, the political power that had brought about that end was nowhere to be found in a Constitution that authorized only limited government. In the end, therefore, the conservatives’ “judicial restraint” was no more grounded in law than the liberals’ “judicial activism.”

Recognizing that, a second, more sophisticated response emerged, spurred on by libertarians, one that urged judges to be active in discerning the true law and applying it to cases before them. On that view, judges had no business deferring to the political branches — the Constitution hardly instituted a pure democracy, after all. Rather, their job was to discern the “first principles” of the matter. Judges imbued with that view would sometimes find that the political branches had the authority to do what they had done. But other times they would find no such authority; or they would find rights, both enumerated and unenumerated, that were embedded in the Constitution and were meant to restrain political power.

That is the view that the Rehnquist Court has begun to revive — albeit, only begun. And that is what drives modern liberals to the wall, because in the end it challenges the New Deal’s politicization of the Constitution, which they thought was now “settled law,” however inconsistent with the Constitution itself. The Times editorial does not say that in so many words, but the point is there to be noticed. Thus, it frames things by pitting “the White House representing the far right in the [judicial] nominating process” against Democrats and moderate Republicans who are urged to build a “mainstream coalition” to block “extremist nominees” sent up by “Justice Department ideologues.” Republicans may have won big in the election, but they’re still not in “the mainstream,” apparently. Note that there is no mention of law here. Rather, the editorial complains that many Bush nominees “favor taking away the right to abortion, striking down reasonable environmental regulations and turning back the clock on race” — as if what they “favor” were the issue, not what the law requires. The editorial is pure spin: law is just politics by another name; given that, one places oneself in the “mainstream” while branding one’s opponent as an “extremist.”

When we turn to the Sunstein piece, however, we see a somewhat different take on the dilemma now facing the left. The Times editorial, written in the tradition of the Warren and Burger Courts, envisions countermajoritarian judges protecting rights, even “rights” never meant to be protected by the Constitution. Sunstein, by contrast, represents a new liberal wave, albeit a throwback to the New Deal. Like the Times, he too tries to enlist Republicans who, like Democrats, should be “alarmed” by the prospect of courts that “will be just as likely to strike down legislation that has received bipartisan approval as legislation supported by liberals.” But his main target is “judicial activism” on the right — “activist courts” that might invalidate campaign finance legislation, affirmative action programs, and gun control while upholding commercial speech, much as the Rehnquist Court has been doing in recent years. Earlier, “principled conservatives,” he says, “respected the powers of Congress and state governments.” But that changed during the Reagan years when “some conservatives started advocating an aggressive role for the Supreme Court,” believing “that they were speaking for the Constitution itself.” That is “the most damaging myth of all,” he claims, because the document contains “ambiguities and generalities” that leave it indeterminate. He concludes with a warning that is pure politics: “A Republican-controlled Senate has nothing to gain from judges who would read the Constitution to restrict its powers.”

There, in a nutshell, is the ultimate politicization of the Constitution — confirm these judges and they’ll limit your power. Far from being a document that authorizes and then limits power — Madison’s view — the Constitution is seen as an empty vessel to be filled by transient political majorities locked in a Hobbesian war of all against all. Whereas Califano and the Times would have judges pursuing “social justice,” Sunstein would have them step aside so the political war could continue. Neither view reflects the law of the land. One unleashes political judges. The other unleashes politics. The Framers wrote the Constitution precisely to avoid those extremes. The document may to some extent be indeterminate, but it surely leaves us with more to go on than that.

The virtue of the emerging constitutional jurisprudence of the right is that it is addressing just those issues. It is returning to the “first principles” of the matter to show, at bottom, the respective domains of law and politics. Judges who actively recognize and enforce those principles are not engaged in judicial activism. They are doing what they are sworn to do by their oath of office.

Roger Pilon is vice president for legal affairs at the Cato Institute, director of Cato’s Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.