Mr. Chairman, distinguished members of the subcommittee:
My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato’s Center for Constitutional Studies.
I want to thank Chairman Hyde of the committee and Chairman Coble of the subcommittee for their invitations to me to testify on the important issue of “Judicial Misconduct and Discipline.” These hearings have been called, I understand, because of a concern that a number of people have expressed about “judicial activism”—the practice by judges of applying to cases before them not the law but principles or values that are no part of the law. Because such a practice is thought by many to constitute judicial misconduct, some in Congress are searching for ways to discipline it.
At the outset, let me summarize my thoughts on this subject, then discuss it in somewhat more detail. There can be no question that judicial activism, as just described, has been a problem in our legal system for some time. The power of the judiciary under our Constitution to declare the law and decide cases under that law is awesome; when abused, that power is too often beyond reach. At the same time, I believe that many of those who have complained most often about judicial activism have overstated and misstated the problem, thus distracting us from the real issue—legislative activism on the part of Congress, which leads to judicial activism.
Overstating the problem. Many of the examples of “judicial activism” that are cited turn out, when examined more closely, not to be cases in which the judge failed to apply the law but applied the law differently, or applied different law, to reach a result different than the result thought correct by the person charging activism. To be sure, there is no bright line between failing to apply the law and wrongly applying the law or applying the wrong law, but when that distinction is drawn, it turns out that there are fewer cases of true judicial activism than at first may appear.
Misstating the problem. More importantly, the problem of “judicial activism” is seriously misstated when it is cast, as it often is, as involving judges overruling the will of the people. In our legal system, judicial review often requires a judge to do just that. In such a case, were the judge to defer to the political will, exercising “judicial restraint” when the law requires active judicial intercession, that restraint would itself be a kind of activism, for it would amount to an “active” failure to apply the law in deference to democratic or majoritarian values. The judge in such circumstances would be shirking his judicial responsibilities every bit as much as if he overrode a legitimate exercise of political will in the name of other values.
Thus, as terms of art, judicial “activism” and “restraint” can be quite confusing and even misleading. What is more, they are often used in ways that camouflage the real issues. What we all want, I assume, is judges who are neither “active” nor “restrained” but “responsible”—responsible to the law. But when the law is unclear or inconsistent, judicial responsibility may be difficult to achieve—and “activism” inevitable. In the end, therefore, our substantive law may be the ultimate source of the problem before us today. That, in fact, is what I will argue shortly. Let me begin, however, with a brief overview of the complaints. 
II. The Critics of Judicial Activism
Complaints about “judicial activism,” however formulated, can be found from our inception as a nation. In their modern form, however, they have come largely since the advent of the Warren Court and most often from political conservatives. My fellow panelist today, Professor Lino Graglia, with whom I have debated the issue more than once, has put the complaint starkly:
… the thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum. 
“That is exactly right,” comments Judge Robert Bork in his recent best-seller, Slouching Towards Gomorrah, “and the question is what, if anything, can be done about it.”  I gather that these hearings are a partial answer to that question.
The bitter confirmation battle that followed Judge Bork’s Supreme Court nomination a decade ago had a way of concentrating the issue for many, of course. Still, the issue has been in the air since the 1950s, covering subjects as various as civil rights, apportionment, federalism, speech, religion, abortion, education, criminal law and procedure, and much else. And in each case, the complaints from conservatives have been essentially the same.
Speaking before the Federalist Society’s 10th anniversary lawyers convention last November, for example, Senator Orrin Hatch, chairman of the Senate Judiciary Committee, summarized the issue from his perspective:
What is at stake … is nothing less than our right to democratic self-government as opposed to … “Government by Judiciary.” For when we commission judicial activists who distort the Constitution to impose their own values, policy preferences, or visions of what is just or right, we are in effect sacrificing our ability to govern ourselves through the democratic political processes to the whims and preferences of unelected, life-tenured platonic guardians. 
Judges “must interpret the law, not legislate from the bench,” Senator Hatch continued. “A judicial activist, on the left or the right, is not, in my view, qualified to sit on the federal bench.” 
In a similar vein, little more than two months ago Senator John Ashcroft, chairman of the Constitution Subcommittee of the Senate Judiciary Committee, told the Conservative Political Action Conference at its annual meeting that it was time “to take a broader, comprehensive look at the alarming increase in activism on the court.”  Asking what we can do to put an end to “judicial tyranny,” Senator Ashcroft called for rejecting “judges who are willing to place private preferences above the people’s will.” 
Not to be outdone by the Senate, on March 11 House Majority Whip Tom DeLay told editors and reporters at the Washington Times that “as part of our conservative efforts against judicial activism, we are going after judges” and are “right now” writing articles of impeachment.  Those sentiments were echoed two days later by Congressman Bob Barr of this subcommittee when he appeared on CNN’s “Crossfire.” Clearly, perhaps as never before, the issue of judicial activism is on the nation’s agenda. 
III. Overstating the Problem
It is not entirely clear just what has brought the judiciary and its methods to the nation’s attention at this point in time. Cynics point to the need for something—some issue—in a drifting Republican Party: “The revolution is in the doldrums. Nobody’s got a plan; nobody’s got a direction.”  Others, however, have noted a rising frustration among conservatives over their relative ineffectiveness on the judicial front despite having dominated the judicial selection process since the Nixon years.  And still others cite a series of recent cases that have seemed to crystalize complaints about judicial activism: the district judge who stayed the California Civil Rights Initiative (CCRI);  the New York judge who suppressed evidence in a drug case, saying the police had no reason to stop the suspects;  the decision by the Supreme Court that the Virginia Military Institute had to become coeducational. 
Looked at in broad perspective, there can be no question that the drift in American law over the past 40 years and more has been in large part to the left, as that term is ordinarily understood. And a good part of that drift has resulted from court decisions. Yet by no means can all or even most of the drift be attributed to the courts. Moreover, even that part that has resulted from court decisions does not arise entirely or even primarily from “judicial activism”—not unless that idea is stretched to include every decision that conforms to some leftist political agenda.
In fact, when we look at most such decisions closely, we rarely find that the judge or justices “legislated.” To be sure, they often reach results consistent, if not with their “whims,” at least with their “values, policy preferences, or visions of what is just or right.” But those results can usually be tied to some legal anchor, even if it takes some stretch to do so.
Take the recent CCRI decision by U.S. District Court Judge Thelton Henderson, which enjoined enforcement of the initiative shortly after it was passed by some 54 percent of California’s voters. Many critics of the judiciary immediately pointed to the decision as a blatant example of judicial activism. Judge Henderson’s opinion was a stretch, to be sure. But it was not without legal foundation, citing Hunter v. Erickson, 393 U.S. 385 (1969) and Washington v. Seattle School District No. 1, 458 U.S. 457 (1982). Moreover, as we know, the case has taken the normal appellate course; the decision has since been reversed by the U.S. Court of Appeals for the Ninth Circuit;  and plaintiffs have just filed a petition for certiorari with the Supreme Court. We are likely to learn from the Court whether the cases Judge Henderson relied upon in fact apply or are still good law. In the meantime, however, we are hard pressed to say that his decision was “lawless,” however strained it may have been.
One could review putative cases of judicial activism almost ad infinitum, of course, but the fact remains that the better part of such cases do not exhibit judicial lawmaking, just better or worse judicial reasoning. It is no small irony, however, that when we do come across a genuine case of blatant judicial activism that cuts the other way, politically, many conservative critics of the judiciary are strangely silent. That was pointed out just last week, for example, by conservative constitutional scholar Bruce Fein in an op-ed in the New York Times, citing the current controversy over the decision of an Alabama state judge to defy a long line of Supreme Court rulings on the separation of church and state “by posting a copy of the Ten Commandments in his courtroom and inviting clergy to lead juries in prayer,”  even after a state appellate court found the practices unconstitutional.
IV. Misstating the Problem
In the end, therefore, those who are concerned about judges who seem always to be leaning to the left may be better advised to look less to the judicial role in our system—to the practice of judicial review—and more to the reasoning judges employ in performing their roles and, more importantly, to the sources they employ when doing their reasoning. Bad reasoning is just that and should be called that, not called judicial “activism.” But bad law, from which so much bad reasoning proceeds, is another matter. We should hardly be surprised that judges today are thought so often to be engaged in “judicial activism” when they are called upon so often to apply law that is inconsistent, incoherent, and fairly invites them to make all manner of value judgments. In such circumstances, they can hardly be seen to be doing anything but legislate.
We come, then, to what in fact is the crux of the matter. Under our system of law, the role of the judge should be much simpler than it has come to be. The problem, however, does not go back just 40 years, as too many conservatives believe. Rather, its institutional roots are in the New Deal. And its ideological roots are in the Progressive Era, when we stopped thinking of government as a “necessary evil,” as the Founders had conceived of it, and started thinking of government as an engine of good, an instrument for solving all manner of social and economic problems. Standing in the way of carrying out that agenda, of course, was a constitution that established a government of limited, enumerated powers—a constitution that held, more or less, until the New Deal. As we all know, however, when President Roosevelt was unable to get his programs past the Court—there being no authority for them under the Constitution—he threatened to pack the Court with six additional members. Not even Congress would go along with that. Nevertheless, the Court got the message; there was the famous switch in time that saved nine; and by 1938 the Court had essentially turned the Constitution on its head, as New Deal architect Rexford Tugwell would later tell us the administration meant for it to do. 
In a nutshell, a document of delegated, enumerated, and thus limited powers became in short order a document of effectively unenumerated powers, limited only by rights that would thereafter be interpreted narrowly by conservatives on the Court and episodically by liberals on the Court. Both sides, in short, would come to ignore our roots in limited government, buying instead into the idea of vast majoritarian power—the only disagreement being over what rights might limit that power and in which circumstances. Indeed, we need look no further than to Judge Bork—no liberal he—to see the new vision stated—and wrongly ascribed to James Madison. The “Madisonian dilemma” that constitutional courts face, Bork tells us, is this:
[America’s] first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. [It’s second principle is] that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. 
That gets the Madisonian vision exactly backward, of course. America’s first political principle may indeed have been self-government, but its first moral principle—and the reason the people instituted government at all—was individual liberty, as the Declaration of Independence makes plain for “a candid world” to see.
Indeed, we did not throw off a king only to enable a majority to do what no king would ever dare. Rather, the Founders instituted a plan whereby in “wide areas” individuals would be entitled to be free simply because they were born so entitled, while in “some” areas majorities would be entitled to rule not because they were inherently so entitled but as a practical compromise.
That gets the order right: individual liberty first; self-government second, as a means toward securing that liberty—with wide berths to state governments, which were later reined in by the Civil War Amendments. That is why the Constitution enumerated the powers of Congress and the executive, to limit them. And that is why the Bill of Rights concludes with the Ninth and Tenth Amendments: to make clear that Americans begin and end with their rights, enumerated and unenumerated alike, while government proceeds only with the power it is given.
The New Deal changed all that, of course, not by amending the Constitution, the proper method, but by radically reinterpreting it: in particular, by reading the General Welfare and Commerce Clauses not as shields against power, as they were meant to be, but as swords of power; then by turning the Bill of Rights into a document of “fundamental” and “nonfundamental” rights.  None of that was found plainly in the Constitution—to the contrary, the entire document tends plainly the other way. Rather, it was invented virtually out of whole cloth, by the New Deal Court, to make way for the New Deal’s political agenda.
Our modern problem of overweening, inconsistent, incoherent statutory law began, then, not with an activist Court—to the contrary—but with an activist Congress and executive branch, bent on expanding government power. In time, however, the problem was abetted by an activist Court—succumbing to pressure from the political branches. But as noted earlier, the Court’s “activism” was not as we think of it today—a search for rights not apparent in the Constitution. Rather, it was activism in finding rationales for power—what conservatives today call deference to the political branches.
It needs to be said again, however, that the New Deal Court’s activism was not entirely without legal foundation. The sources for the Court’s rulings were there, in the Constitution, even if it did take a high degree of creativity, to be charitable, to draw them out, and even if doing so did fly in the face, for the most part, of a century and a half of constitutional jurisprudence that went the other way.
We come, then, to the bottom line in all of this. Law, including constitutional law, is not written in immutable stone. It is to some extent malleable, of necessity, and is given life by those charged with giving it life—the judiciary. In doing their work, however, judges do not work in a vacuum. They work instead in a larger political climate. If we who shape that climate persist in believing that it is proper for government to be addressing our every problem, no matter how trivial or personal, and persist in believing that our Constitution can legitimately be read to authorize that result, then we should not be surprised that the judiciary is dragged along to play its part in the process—today, often, to try to undue the mess that legislatures make of the effort. 
Yes, judges today often thwart the majoritarian will—as a vestige, perhaps, of their former principal role. Just as often, however, a judge may see himself as simply a facilitator in the grand enterprise of government. We are coming to the close of what has rightly been called the century of government—more accurately, the century of failed government planning. If we are unhappy with the role the judiciary sometimes plays in this setting, it may be that we need to look first to the material we give judges to work with—the reams of statutory material we have enacted over the course of the century.
The Founders had a simpler vision in mind when they set out to craft our legal order. They left most human affairs to private ordering, not to government planning. That gives the judiciary—and Congress—relatively little to do. Is that not what critics of judicial activism want?
A curriculum vitae is attached. Pursuant to House Rule XI, clause 2(g)(4), neither I nor the Cato Institute receives any federal funds—as a matter of principle.
 I have discussed the issues that follow more fully in: “Congress, the Courts, and the Constitution,” Cato Handbook for Congress (105th Congress), ch. 3 (esp. pp. 36-42), (1997); “A Government of Limited Powers,” Cato Handbook for Congress (104th Congress), ch. 3 (1995) (reprinted as “Restoring Constitutional Government,” Cato’s Letter No. 9 (1995)); “Rethinking Judicial Restraint,” Wall Street Journal, Feb. 1, 1991, at A10 (op-ed); “Constitutional Visions,” Reason, Dec. 1990, at 39-41 (review of Robert Bork’s The Tempting of America); “Legislative Activism, Judicial Activism, and the Decline of Private Sovereignty,” in Economic Liberties and the Judiciary (J. Dorn & H. Manne eds., 1987); and “On the Foundations of Justice,” 17 Intercollegiate Rev. 3 (1981).
Lino Graglia, “It’s Not Constitutionalism, It’s Judicial Activism,” 19 Harvard Journal of Law & Public Policy, 293, 298 (Winter 1996).
Robert H. Bork, Slouching Towards Gomorrah 114 (1996).
“Remarks of Sen. Orrin Hatch Before the Federalist Society’s 10th Anniversary Lawyers Convention,” Senate Judiciary Committee News Release, Nov. 15, 1996, at 4.
Id., at 5 (original emphasis).
John Ashcroft, “Courting Disaster: Judicial Despotism in the Age of Russell Clark,” March 6, 1997, at 4 (MS available from the office of Senator Ashcroft).
Id., at 3.
Ralph Z. Hallow, “Republicans out to impeach ‘activist’ jurists,” Washington Times, March 12, 1997, at 1. See also Katharine Q. Seelye, “House G.O.P. Begins Listing A Few Judges to Impeach,” New York Times, Mar. 14, 1997, at A24.
This very brief overview barely touches on the vast body of both scholarly and popular literature on the subject, to say nothing of political activism about judicial activism. In this last category, for example, is the Judicial Selection Monitoring Project of the conservative Free Congress Foundation’s Center for Law & Democracy, which on January 27, on behalf of 260 grassroots organizations and 35 radio and television talk show hosts, petitioned President Clinton and members of the Senate to nominate and confirm only those candidates for the federal bench who are committed to judicial restraint.
Michael Kelly, “TRB from Washington: Judge Dread,” The New Republic, Mar. 31, 1997, at 6. See also Laurie Kellman, “Republicans rally ‘round judge-impeachment idea,” Washington Times, Mar. 13, 1997, at A1: “The plan is aimed in part at reviving Republican morale, which has flagged this year because of Mr. Gingrich’s ethics troubles and the majority’s sparse floor schedule,” at A18.
See, e.g., Terry Eastland, “Deactivate the Courts,” The American Spectator, Mar. 1997, at 60. For a fuller treatment of why conservative efforts to influence the courts have been so unsuccessful, see James F. Simom, The Center Holds: The Power Struggle Inside the Rehnquist Court (1995). For a critique of that book, and the Court itself, see Roger Pilon, “A Court Without a Compass,” 40 New York Law School Law Review 999 (1996).
Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D. Cal. 1996).
United States v. Bayless, 913 F. Supp. 232 (S.D.N.Y.), rev’d on rehearing, 921 F. Supp. 211 (S.D.N.Y. 1996).
United States v. Virginia, 116 S. Ct. 2264 (1996).
Coalition for Economic Equity v. Wilson, 1997 U.S. App. LEXIS 6512 (9th Cir.).
Bruce Fein, “Judge Not,” New York Times, May 8, 1997, at A39. Cf. Debbie Kaminer, “Thou Shalt Not Display the Ten Commandments in Court,” Legal Times, May 5, 1997, at 27; Terrence P. Jeffrey, “Governor James at the Courthouse Door,” Human Events, May 9, 1997, at 6.
“To the extent that these [New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.” Rexford G. Tugwell, “A Center Report: Rewriting the Constitution,” Center Magazine, Mar. 1968, at 18, 20.
Robert H. Bork, The Tempting of America 139 (1990)(emphasis added).
I have discussed these issues more fully in Roger Pilon,”Freedom, Responsibility, and the Constitution: On Recovering Our Founding Principles,” 68 Notre Dame Law Review 507 (1993).
Thus, the Court has long been criticized by conservatives for its 1971 decision in Griggs v. Duke Power Co., 401 U.S. 424, which gave rise to the “effects test” in antidiscrimination law and to a host of affirmative action programs. But in interpreting the language of section 703 (h) of the Civil Rights Act of 1964, which authorizes “any professionally developed ability test” that is not “designed, intended, or used to discriminate because of race” (at 433, emphasis by the Court), the Court simply drew upon the ambiguity of “used.” Congress could later have addressed that ambiguity, of course, but it did not. In cases like this, then, responsibility rests ultimately with Congress.