Judicial activism

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In a comment on Crooked Timber, Dan Simon writes:
Jet, I'm using "judicial activism" in the only sense in which it makes sense to me: the (ab)use of judicial authority to overrule democratically enacted laws. And yes, Pat, many hypocrites do "tend to love it or hate it depending on whether it goes their way" but I'm not one of them. I take a principled stand against it, irrespective of its political direction in any particular case.

Dan's position is that (at least as stated above) seems to embody a complete rejection of judicial review. Congress were to pass a law that directly violated the Constitution (e.g. declaring Christianity the national religion and banning the practice of Islam) then Dan's position would imply objecting to the Supreme Court overruling said law. It seems to me that there are two primary positions that are consistent with this view:

  1. The government should be a pure democracy without any limitations on the popular will.
  2. There should be limitations on the popular will but it's not the court's job to enforce them.

Now, (1) is certainly a reasonable position in some political science sense (though I think that the public choice literature indicates that it's a bad idea), but I think it's pretty clear that it's not the form of government we have. It's pretty clear in the Constitution that in the US system the government is at least nominally constrained by certain rules. Indeed, the oaths taken by Senators, Representatives, and the President explicitly commit them to support and defend the Constitution. So, that leaves us with (2).

The question at hand, then is what check there is against those officers violating their oaths and acting in an unconstitutional fashion. One view would be that there's no check other than voting them out of office. However, if you believe, as I do, that many of the activities that Congress has historically been willing to engage in are blatantly unconstitutional, then this is fairly small comfort, since we're more or less back to unrestricted democracy, which, while perhaps fine, isn't the system we're supposed to have.

None of this is to say, of course, that I think that every time the Supremes rule a law unconstitutional they've made the right decision. The question is whether as a structural matter they should be able to do so at all. And if you think they shouldn't, then what's the point of having a constitution that limits the power of the government?

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9 Comments

For starters, I always thought judicial activism was more than just judges striking down democratically enacted law. In fact, I've always thought the biggest complaint with regard to judicial activism was that judges were creating laws for what seems like thin air.

Anyway, I think you are right in that we cannot have the Congress run around unchecked (one could argue that even without the courts, there is still the Presidential veto). But the scenario you have cited seems to be very simplistic. A better complaint about judicial activism is perhaps the courts striking down gay marriage bans based on vague interpretation of state constitutions. Not that I'm for banning gay marriage, but I do wonder where some courts have found such laws to be constitutional violations.

ekr:

A decent chunk of the public choice literature would say it doesn't matter what individual preference aggregation mechanism you have, you still can't say anything about what "the public" prefers.

To clarify, I do see judicial review as potentially having a productive, if limited, role to play in a democracy: protecting democracy itself from subversion by elected officials. This role is similar to that of a hereditary monarch in a constitutional monarchy, who is responsible for ensuring that elected officials can't use their powers to crush democratic opponents and seize dictatorial control of the country--much as Juan Carlos did in Spain during the early post-Franco era.

I believe much, if not all, of the US Constitution can be read in this light. The obvious example is the First Amendment, which prohibits several classes of laws that can obviously be used against political opponents of the ruling government. The Fourth, as well, is well-known to have originated in the British practice of using searches and seizures to disrupt the political activities of opponents of the colonial government. If the courts generally limited themselves to reviewing laws to prevent this kind of abuse, I would be much less disturbed by their exercise of their review powers.

Of course, when one gives absolute power to anyone, it can be abused, and the courts could simply alter the reasoning in their opinions, leaving their rulings otherwise unchanged. But cultural consensus does have its effect--even today, there are things that the Supreme Court dare not do, for fear of looking even more arbitrary and dictatorial than the culture currently gives them leeway to be. I think it's plausible that a Supreme Court whose role was understood as I outlined above could make an overall positive contribution to the democratic process. (As a matter of fact, the Canadian Supreme Court used to function this way, reading the British North America Act, Canada's founding law, in a very narrow, structural light, before the 1982 Constitution gave them implicit carte blanche to riff, American-style, on their inner feelings about what's best for the country.)

Dan,

Thanks for writing. I guess what I'm trying to get at is: do you think there is some set of structural changes that you believe would be appropriate to limit the Supremes to making the kind of decisions you think are appropriate? Or do you just wish the Supremes were more self-restrained?

I should note that the Supremes don't have absolute power. With support, after all, we can amend the Constitution to correct Supreme Court excesses, as has happened in the past and appears quite likely to happen soon with the flag-burning amendment.

As a structural matter, I happen to prefer the standard parliamentary system, where the unelected authority has very limited powers, focused on the ability to jump-start the machinery of democracy whenever it appears to be in danger of being dismantled. As I mentioned, I don't believe there's any inherent contradiction between this structure and the US Constitution. (Indeed, if the Supreme Court just suddenly decided to interpret the Constitution this way, then it would come to pass.)

But I also believe that cultural conventions are at least as powerful as structural ones in determining the real, practical constraints on the various branches of government. A pure parliamentary system in the US could very well end up looking like the current one, with the unelected authority gradually accumulating powers at the behest of a public eager to be saved from their own collective autonomy. To quote Learned Hand, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."

Now, allow me, if I may, to probe your preferences a bit further, Eric. Do you fully embrace a system in which the limitations on government power, however they are defined, are enforced by granting the power of absolute decree to a panel of nine life-tenured lawyers? And if not, what alternative would you prefer?

Dan,

First I'd like to reiterate that the system we have does *not* confirm the power of absolute decree on the Supremes. They can, and have, been overridden via Constitutional amendment. Thus, the specific question you ask is of minimal relevance.

In response to a more general version of this question, my view is that the legislature (and elected officials in general) have a tendency to overreach their authority in response to what they perceive as the popular will. In general, they don't appear to be much constrained by Constitutional limits on their power. Therefore I'm in favor of institutions which limit that power explicitly, and the Supreme Court is such an institution. Of course, there's the concern that such institutions will themselves overreach, but since the Supreme's powers are mostly used to countermand actions of the legislature or executive branch, this has the effect of limiting governmental power, which, as I mentioned, I'm in favor of. Certainly one could imagine institutions other than a court which would have this effect, but the Supreme Court is what we've got.

Jay argues that the court is the weakest branch of government, "holding neither the sword nor the purse." He then goes on to argue passionately, that the courts have a positive duty not to uphold laws which violate the constitution, even though the President alone is charged (and only through the oath) with upholding the constitution. Oddly, he does not mention the supremacy clause, but argues from first priciples.

For me, judicial activism is evidenced when words such as "should" and "ought" appear in their opinions. Bad laws (bans on interstate wine sales) can still be constitutional (twenty-first amendment section 2). Blatantly unjust laws (limiting the franchise) can still be consitutional (fourteenth amendment section 2). Finally, laws can be unconstitutional but the US courts helpless to act unless Congress steps in (fifteenth amendment section 2). When the courts see themselves as participants in the lawmaking process, they have ceased being passive guardians of the constitution and enforcers of the law--they are activists.

The constitutional checks are amendment and impeachment. I find it instructive that no one has yet mentioned the second option. Note that the constitution states that judges shall hold office "during their good behavior"--meaning that "bad behavior" is supposed to be an impeachable offence. But Jefferson appears to have been proven right--impeachment is a chimera.

Who watches the watchers? We have a determined minority controlling a majority of the court and more than a third of the Senate, precluding either amendment or impeachment. I personally think that a successful or nearly successful impeachment is the only constitutional way to teach respect to the court. That means changes in the Senate are the only constitutional option.

The primary extraconstutional options-- constitutional convention & forcible change are probably even more unworkable.

There does however remain another option-- constitutional crisis. The executive authority could simply ignore the court. (See primarily Jackson & Lincoln) In practice this requires that the executive agents either place their loyality in the executive or else explicity support the executive's challenge of judicial fiat.

"Who watches the watchers? We have a determined minority controlling a majority of the court and more than a third of the Senate, precluding either amendment or impeachment."

Well, Nathan, I think of this as a feature, not a bug because I *want* it to be difficult to pass laws that are potentially unconstitutional. As I said to Dan earlier, I'd prefer that the government err on the side of doing less, not more.

I find it rather strange that you say that amendment is precluded, since we're within a few votes of having a flag burning amendment passed by the Senate. It may well be the case that some amendment you would like to have passed is politically infeasible, but to my mind that's a demonstration that it doesn't have enough popular support to deserve passage.

we're within a few votes of having a flag burning amendment passed


Which amendment is, of course, so important. Honestly, why on earth are they worried about this? Aren't there more important things for them to waste^h^h^h^h^h spend their time on?


It may well be the case that some amendment you would like to have passed is politically infeasible, but to my mind that's a demonstration that it doesn't have enough popular support to deserve passage.


The ERA, for example.


Sigh.

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