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Ethical Inquiry: November 2010

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Debating “Judicial Activism” – How Far Should Judges Go?


“If we desire respect for the law, we must first make the law respectable.” – Louis D. Brandeis

“No judge wants to make law.” – Elena Kagan, during confirmation hearings

Is gay marriage a protected right? May corporations freely influence elections? Should abortion be legal?

These questions all have one thing in common: they find their practical resolution in the law, and specifically in the courts. 

As the current term of the U.S. Supreme Court gets underway, with two new associate justices, we explore in this inquiry an idea that has recently been used slur of sorts: “judicial activism.”

Accusations of “judicial activism” have been rife in recent years, including during the Elena Kagan nomination hearings.

The question of judicial activism gets at the heart of how judges should interpret and apply the law. To what extent should there be a human, personal aspect of judgment when judges are asked to render a final answer to a complex question?


Defining the “A-word”

What does “judicial activism” mean? Encyclopedia Britannica explains that the term can in fact “bear several meanings,” and it is therefore difficult to assign it a simple definition. In "Judicial Activism Reconsidered" Stanford University’s Thomas Sowell cautions that the term has become a “catchword” to the point that it can actually “obscure more than it reveals.” 

Different definitions thus tend to have slightly different takes.

The online Glossary of Political Economy Terms states that judicial activism means judges “should creatively (re)interpret the texts … to serve the judges’ own considered estimates of the vital needs of contemporary society” and shouldn’t “hesitate to go beyond their traditional role as interpreters” of the law. Therefore the judges, instead of only the elected representatives, can serve as society’s “independent policy makers.”

The fifth edition of Black’s Law Dictionary (1979) a scholarly legal dictionary generally regarded as most authoritative, defines judicial activism as a judge “depart[ing] from strict adherence to judicial precedent in favor o[f] progressive and new social policies which are not always consistent with the restraint expected of appellate judges.”

More recent definitions tend to ascribe a more negative connotation to the term. The seventh edition of Black’s Law Dictionary (1999) defines it as when judges use “their personal views about public policy” in their decisions and, in so doing, actually “ignore” precedent (as opposed to “depart from” it — the more benign word choice of the fifth edition). This, continues the more recent definition, subjects the judges to “accusations” of judicial activism.

Judicial activism is often contrasted to the doctrine of "originalism," which is “the view that the Constitution has a fixed and knowable meaning established at the time of its enactment.”


Arguments for a more “activist” judiciary


Protection of the minority

The Supreme Court’s landmark Brown v. Board of Education of Topeka ruling of 1954, which declared the racial segregation in public schools to be unconstitutional, is generally viewed as a point of pride in American history. It was only when the court became “judicially active”, interfering with established law and overturned precedent, that the rights of racial minority students were protected.Brown v. Board of Education headline

The National Archives document how the decision fortified “minority groups and members of the civil rights movement,” and how “proponents of judicial activism believed the Supreme Court had appropriately used its position to adapt the basis of the Constitution to address new problems in new times.”

Since the legislature in a democracy makes law by majority vote, it might establish laws that deny rights to minorities who lack the numbers to block passage. The judiciary’s willingness to actively enforce minority rights serves as a check on this possibility.

Recent scholarly studies have validated the notion that “an active judicial branch is a vital check on the majoritarian tendencies of citizen legislation.” Even Supreme Court Justice Stephen Breyer has championed a freer judicial activity, advocating in his book Active Liberty for personal interpretation of the Constitution as opposed to passive acceptance of the status quo. He has explained that the Court is obligated to advance “political rights of minorities and look beyond the Constitution’s text when necessary.”

“Judicial activism” is part of the job

Alexander Hamilton, one of the Constitution’s framers, discussed the role of the judiciary in The Federalist Papers: No. 78. Using terms like “judicial discretion” when describing the judiciary’s duties, he explained “interpretation of the laws is the proper and peculiar province of the courts… It therefore belongs to them to ascertain [the law’s] meaning.” If it is the ultimate duty of the court to have final say in matters of legal interpretation, then how can one fault the court for having final say by interpreting as it sees fit?Alexander Hamilton

Hamilton here essentially laid out the principle of judicial review, defined by Encyclopedia Britannica as the “power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government.”

This indeed closely mirrors the notion of “judicial activism,” which refers, in essence, to rulings “handed down by the courts that invalidate, rather than merely interpret, Congressional legislation.” Having a strong judiciary is really just an extension of its having judicial review, which in turn is really just a part of the judiciary’s duties. 

Indeed judicial review is regarded by some as one of the United States’ legal system’s “distinctive features,” as a FindLaw article analyzing the establishment of United States’ judicial review says, and there is essentially unanimous agreement among legal scholars – particularly given its formalization in the 1803 landmark case Marbury v. Madison – that the judiciary has the ability to exercise its strong hand in all many areas of government.

Additionally, some contend that every judge is an activist judge in his or her own way. Some even argue that Supreme Court Associate Justice Scalia, one of the country’s most ardent opponents of judicial activism Justice Scalia is a judicial activist.

“The Times They Are a-Changin'” – and judges must change with them

One of the definitions of judicial activism establishes the term as a judicial philosophy that “the spirit of the times and the needs of the nation can legitimately influence judicial decisions.” 

As noted above, this philosophy is often contrasted to that of originalism. Judges who disagree with judicial activism, such as Justice Scalia, tend to embrace originalism. But even they may show traces of judgments that are affected by more than just the original text’s intent.

Justice Earl Warren portraitIn the 1958 Trop v. Dulles ruling, which forbade Congress from removing the citizenship of a native-born citizen, Chief Justice Earl Warren put forth the influential proposition [PDF] that the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” It is only natural that new situations will arise, which the framers of the Constitution could not have anticipated and which necessitate judges’ novel interpretation of existing texts. 

In a “FOX News Sunday” interview, Justice Stephen Breyer provided the example of the internet. Justice Stephen Breyer portraitBreyer referenced the Constitution’s words “freedom of speech” as he explained that judges must view the law practically in the context of the real world. “Neither they, the founders, nor those words tell you how to apply it to the Internet,” he said. The Boston Globe summed up his position like so: “Judges must not focus solely on framers’ intent, as Justice Antonin Scalia has argued – because society is constantly evolving.”

Furthermore, the writers of a law might not account for every application or exception not because they believe there can be no exceptions or new applications, but simply because a particular application or exception had yet to arise.


Arguments against a more “activist” judiciary


Maintenance of democracy

Some reason that to maintain a true democracy, power cannot amass in the hands of only a select few individuals. Rather it needs to remain decentralized, spread among various groups of people. There is a fear that overly powerful judges might act simply as they see fit. [PDF - subscription may be required.]

Justice Antonin Scalia Justice Scalia has framed the issue in terms maintaining the democratic system. Unlike Justice Breyer, who advocates the more personal judicial interpretation, Justice Scalia believes judges should be more restrained. Judges should, Justice Scalia maintains, avoid infringing on the domain of the democratically elected legislature. They should disregard their own moral or political views, and apply only the Constitution’s text. In his view, if the Court rules on the basis of anything other than what can be found in the text, the judiciary is too strong.

In Romer v. Evans, a 1996 case regarding the constitutionality of an amendment to Colorado’s constitution, Scalia wrote that because the U.S. Constitution “says nothing about [the amendment’s contents], it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions.”

The Foundation for Economic Education’s flagship journal has commented that those who, like Scalia, oppose a stronger judiciary view judicial activism as “the great mortal sin” and believe that going from “law based upon democratic will… to law created by all-powerful judges” is nothing other than a “usurpation of democracy.”

In “Term Limits for the Supreme Court: Life Tenure Reconsidered,” [PDF] (Harvard Journal of Law & Public Policy, 2006) the authors advocate for a less active high court, for today’s Su

preme Court is “far more powerful today than Hamilton could ever have imagined.” The judges’ strong authority, they argue, reduces their “democratic accountability.”

Judges are not trained to interpret laws

Justice Scalia asserts judges simply aren’t qualified to be judicial activists. They aren’t properly trained in enough fields to make legitimate their far-reaching interpretations of the law. In a debate with now-NYU Law School professor Richard Epstein on whether courts should now protect economic liberties, Scalia doubted whether the justices “would do a good job” given their general lack of formal training in economics. [PDF]

Elena Kagan

This hesitation is highlighted by a recent comment by Justice Elena Kagan who, during her recent confirmation hearings, asserted that “No judge wants to make law.” 

baseball umpire imageDuring the 2005 confirmation hearings of Supreme Court Chief Justice John Roberts, he often used an umpire metaphor  to illustrate his view of the role of the justices. An umpire does not create new rules when there is a new play, but rather only applies the existing rules of the game when making calls. So too, according to this view, should judges avoid any semblance of creativity and disregard their personal views when applying the law.

Since judicial activism often entails the overturning of precedent, it can violate the principle of stare decisis, which bounds the courts to follow precedent. This issue became especially heated this year with the Supreme Court’s decision in Citizens United v. FEC. In a posting titled “Citizens United: stare decisis, judicial activism and the factual record,” the Center for Competitive Politics anticipates how the decision, which overturned Congress’ regulations on campaign finance laws, would raise the issue of the potential conflict between judicial activism and stare decisis.

Issues relating to the stare decisis doctrine, propelled by divided sentiment over the Roberts Court’s increased “activism”, were thrust to the forefront of the national political scene when President Obama, in his 2010 State of the Union address, took the highly unconventional and somewhat controversial step of criticizing the Court’s Citizens United decision, saying that with that decision “…the Supreme Court reversed a century of law to open the floodgates for special interests….”

Potential for misuse

The “protect the minority” argument could backfire, as in the case of Plessy v. Ferguson (1896), which held that school segregation is constitutional (before being overturned by Brownv. Board of Ed.). Even Brown does not serve a model that unequivocally reveals the benefits of judicial activism; the case is not without its detractors, who include former Chief Justice William Rehnquist. In a memo that written before his ascent to the bench, Rehnquist wrote [PDF], “To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are.”

If there’s too much judicial activism, the court rulings might eventually become unenforceable, or at least much less respected, and that would hurt the rule of law.


Supreme Court columns and statue photoFinal Thoughts

The merits and risks of “judicial activism” have been debated frequently in recent years by people on opposing sides of political and legal debates. We invite you to continue exploring the ethical issues that arise in this context, and to share your thoughts with us on our Facebook page.

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This installment of "Ethical Inquiry" was produced with writing support and research by Judah Marans '11, founder and Editor-in-Chief of the Brandeis University Law Journal.