President Obama and Judicial Activism

During a recent interview, President Obama discussed the Supreme Court appointments process, and he offered a critique of conservative judicial activism. Specifically, President Obama argued that:

It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.

President Obama correctly states that judicial activism is typically associated with liberal judges. Many liberal constitutional law scholars, however, have accused conservative judges of being too invasive. Indeed, both liberal and conservative judges have ignored public opinion and the desires of the political branches – starting with the anti-regulatory rulings of the Lochner and New Deal era, the criminal procedure rulings of the Warren Court, and the assault on civil rights during the Rehnquist Court. Commentators across the political spectrum, however, most often use the term “judicial activism” simply to condemn opinions that they find disagreeable.

Obama’s analysis raises two interesting issues. First, it is unclear what rulings he believes were excessive or “activist” during the “’60s and ‘70s.” Conservatives have tossed the activism charge around loosely in order to disparage the Warren Court’s protection of individual liberty and equality. Many of these arguments, however, are inaccurate because from the perspective of national public opinion, the Court’s civil rights rulings enjoyed majoritarian support. Also, the Court did not act vigorously on matters like school desegregation or voting rights until Congress passed comprehensive legislation addressing these concerns.

On other issues, like criminal procedure, that lacked public support, one could make a sound argument that the political process should not enjoy deferential judicial review. Although conservatives and liberals may debate the meaning of the procedural rights protected by the Bill of Rights and the Due Process Clause, these are certainly “core constitutional values.”

Obama’s comments also raise the issue of how the Court should interpret the Constitution. He argues that the Court should extend deference to the political branches so long as they respect constitutional limits. But reasonable jurists can (and often) disagree on the meaning of the Constitution. In fact, the judicial activism rhetoric often masks underlying disagreement over judicial elaboration of constitutional values.

I suspect that Obama offered these comments in order to shape the terms of the debate of his next Supreme Court nomination. If so, the confirmation hearings could cover far more interesting terrain than the last round.

Note: This essay originally appeared on Concurring Opinions, where I am guest-blogging for May 2010.

George Will Comes Clean, Demands "Judicial Activism"

Earlier this year, George Will wrote a column blasting the bailout as an unconstitutional delegation of legislative power to the president. Historically, the Supreme Court has been extremely reluctant to invalidate legislation as violating the "nondelegation doctrine." Furthermore, the Constitution clearly gives Congress power over the economy and the president the power to execute laws passed by Congress. Moreover, the bailout has received support during two sessions of Congress, from two presidents, and from two Secretaries of the Treasury. Consequently, after Will published his article, I described it as a demand for "judicial activism" from a conservative -- which seems to violate a sacred conservative principle. Nevertheless, Will has now come clean and made explicit his demand for an activist "conservative" Supreme Court.

See: More Judicial Activism Please.

Will is not the first conservative to demand judicial activism recently. Many conservatives, for example, have criticized certain rulings by Sonia Sotomayor, which closely follow the law, but reach outcomes that conservatives politically oppose.

Hypocrisy Alert: Conservatives Angry That Sotomayor Is Not a Judicial Activist (Part II)

I have previously argued that "judicial activism" is a bankrupt phrase. Rather than referring to any particular theory of judging, the judicial activism label is simply politically charged rhetoric that groups or individuals invoke to condemn court rulings with which they disagree. Conservative opposition to elements of Sotomayor's rulings proves this point.

Voting Rights for Felons
Recently, the Washington Times published an editorial that attempts to portray Sotomayor as an extremist who wants to give felons the right to vote. The editorial discusses her dissenting opinion in Hayden v. Pataki. In Hayden, the plaintiffs asserted that New York State systematically deprived blacks and Latinos of the right to vote by denying the franchise to incarcerated felons. The plaintiffs argued that New York's election law violates Section Two of the Voting Rights Act, which prohibits "any" policy that dilutes a racial group's votes. The plain meaning of the statute made it applicable in Hayden, but the majority explicitly looked beyond the statutory language to deny the statute's relevance and to dismiss the case.

Arch-conservative Justice Scalia is probably best known for his statutory interpretation jurisprudence which strongly condemns judges who look beyond the "plain meaning" of statutes and consult legislative history and other external sources. Sotomayor, echoing Scalia, grounded her dissent in the language of judicial restraint:

The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. . . . [I]f Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to [the Voting Rights Act], I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent.

It is unclear whether New York's election laws actually dilute the votes of blacks and Latinos, but the court had to consider this as a "fact" at the particular stage of the litigation in which it issued a ruling. The only question the court considered was the applicability of the Voting Rights Act, and it actively explored external sources to reach its conclusion that the law was not applicable (See here for a discussion of Hayden and conservative flip-flopping).

Sotomayor Wants Your Guns
The latest story to spread fear and loathing through conservative America depicts Sotomayor as an anti-gun radical judge. Last year the Supreme Court held for the first time that the Second Amendment right to bear arms extends to individuals. The closely divided (5-4) ruling in District of Columbia v. Heller resolved (at least judicially) a highly contentious debate among legal historians and lawyers concerning the scope of the Second Amendment. Many scholars argued that the amendment only created a right for states to arm their militias, not a right for individuals to arm themselves. The Court rejected this view.

The Heller decision, however, does not instantly apply to states and municipalities. Longstanding Supreme Court precedent finds that the Bill of Rights only limits the federal government, not the states. This view is consistent with the history surrounding the Bill of Rights. The first ten amendments to the Constitution represent a compromise designed to secure ratification of the document. Political opposition to the Constitution centered upon the significant expansion of federal power that it created, relative to the Articles of Confederation. The Bill of Rights, which places limits on federal power, secured ratification. The explicit text of some of the amendments reveal this historical context. The First Amendment, for example, states that: "Congress shall make no law respecting an establishment of religion. . . ."

In a line of precedent decided primarily during the liberal Warren Era, the Supreme Court held that the "Due Process Clause" of the Fourteenth Amendment "incorporates" certain portions of the Bill of Rights and makes those freedoms enforceable against state governments (because the Due Process Clause explicitly constrains states). Nothing in the Fourteenth Amendment or in the history surrounding the amendment, however, explicitly states that it incorporates the Bill of Rights. Instead, incorporation resulted from liberal judicial interpretation.

As a result of a case-by-case process, the Supreme Court has deemed most of the Bill of Rights enforceable against state governments. Among the exceptions is the Second Amendment. In 1886, the Supreme Court ruled in Presser v. Illinois that the Second Amendment only limits the federal government and not the states. In 2005, the Second Circuit followed Presser and held in Bach v. Pataki that the Second Amendment does not limit state legislatures. In 2008, Sotomayor sat on a Second Circuit panel that issued a per curiam opinion in Maloney v. Cuomo that follows Presser and Bach and finds that the Second Amendment does not apply to states.

Although incorporation is a liberal doctrine and Supreme Court and Second Circuit precedent finds the Second Amendment unincorporated, conservatives have blasted the Maloney decision. But their criticism is blatantly hypocritical: They are condemning Sotomayor for following precedent. That Sotomayor's rulings adhere closely to precedent and statutory language undermines one of the popular (yet deceitful) tropes her conservative opponents have advanced against her -- that she lacks impartiality and is an ideologue. By condemning Sotomayor for adhering to precedent and strictly following the language in a statute, conservatives are behaving like inconsistent ideologues who only value judicial restraint and fidelity to precedent if doing so leads to conservative outcomes.

Final Thought
Yesterday, a very conservative panel of esteemed judges in the Seventh Circuit, including Judges Richard Posner and Frank Easterbrook, issued an opinion declining to find that the Second Amendment is incorporated. The court stated that the Supreme Court must make this decision, especially because its own precedent holds that the amendment does not apply to states. The panel also explicitly cites to Maloney as influencing its ruling. Perhaps other conservatives will embrace consistency on this issue as well. Actual caselaw refutes the conservative portrayal of Sotomayor as an outcome driven ideologue. If her opponents care about facts, rather than rhetoric, they will soon shift their views.

Note: For links to all of the essays I have written regarding Sotomayor, see: Sonia Sotomayor on Dissenting Justice.

Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"

Opponents of the Iowa Supreme Court ruling that invalidates the state's anti-gay marriage law have invoked a popular rhetorical tool used to challenge court opinions: "Judicial activism." RNC Chair Michael Steele, for example, describes the ruling as "another example of judicial activism currently threatening family values in America." Conservative Ed Whelan posted an essay on the National Review Online which argues that the ruling proves that: "The lawless judicial attack on traditional marriage and on representative government continues." Republican State Representative Roy Blunt of Missouri opines that: "The Iowa Supreme Court chose today to legislate from the bench by redefining marriage without any concern or deference to the democratic process. . . ." Conservative blogger Rod Dreher at Beliefnet contends that "gay marriage" was "forced on Iowa." Finally, a Des Moines Register article quotes various same-sex marriage opponents who argue that the Iowa Supreme Court "stepped out of its proper role," "redefined[d] marriage," and "advance[d] an agenda the majority of Americans reject."

Don't Believe the Hype: Judicial Activism Is an Utterly Empty Concept
Judicial activism is an utterly empty concept. Contrary to its deceptive connotation, the phrase does not articulate a real theory of judging. Instead, judicial activism is simply a rhetorical device used by individuals across the political spectrum who wish to bash courts for invalidating statutes they find desirable. If a person does not favor a particular law, he or she will not describe a court's invalidation of such law as an awful moment of judicial activism.

Claims of judicial activism are commonly associated with conservatives who fear "liberal" (or "elite") judges imposing their views upon a more moderate or conservative society. But liberals have also complained of overzealous judges defeating democracy. Indeed, one of the most highly criticized eras in the history of the Supreme Court began at the turn of the 20th Century when conservative free market justices liberally construed the Fourteenth Amendment and recognized a constitutionally protect right of "economic liberty."

During the so-called "Lochner Era," the Supreme Court used the concept of economic liberty to invalidate over 200 state and federal laws that regulated the economy and the health and safety of workers and the public. This pattern continued up until the New Deal -- after which the Great Depression, turnover in the Court's personnel, FDR's vitriolic criticism of Court rulings, and a "switch" in one justice's position on the subject ushered in a new era of judicial deference on economic issues.

More recently, conservative federal judges have invoked the ambiguous concepts of federalism and state sovereignty in order to impose drastic limits on the operation of federal statutes, particularly in the area of civil rights. Yet, conservatives did not blast the Rehnquist Court for its "activism."

The Iowa Supreme Court Simply Applied the Law
The Iowa Supreme Court's ruling is steeped in constitutional analysis. One can disagree with the analysis, but that does not transform the ruling into something other than analysis.

Although the outcome of the case turns on the meaning of the Iowa constitution, much of the ruling discusses federal constitutional law regarding the meaning of equal protection. The Iowa Supreme Court held that denying same-sex marriage constitutes a form of "sexual orientation" discrimination. Even though the statute does not mention sexual orientation, it is patently clear that only gays and lesbians seek to enter into same-sex marriages (if not, we would see heterosexuals filing suit).

The Iowa Supreme Court then applied well established precedent and determined that because sexual orientation discrimination deviates from the state constitutional norm of equal protection, it could not engage in a deferential analysis of the state's reasons for banning gay marriage. Court's make these types of choices every day.

Although courts typically defer to lawmakers, when legislators use their authority to invade fundamental liberties or to discriminate on an improper basis, then judicial review is by necessity more invasive. Otherwise, constitutional freedoms would have very little meaning.

The Iowa Supreme Court invoked the same doctrinal concept of "rigid" judicial scrutiny that has allowed conservative judges to invalidate affirmative action policies, strike down a portion of the Violence Against Women Act, limit the ability of civil rights plaintiffs to recover damages from illegally behaving state governments, and to reverse a state court ruling grounded in statutory law, which ordered the Boy Scouts of America to stop discriminating on the basis of sexual orientation. If conservatives do not believe that the Iowa Supreme Court has the authority to overturn laws that violate the state constitution, then they must condemn conservative court rulings that invalidate statutes that implement liberal policy.

How About a "Real" Debate
Unlike many other progressives, the concepts of federalism and separation of powers do not threaten me. Indeed, these concepts have advanced progressive causes. Pointing to the separation of powers doctrine, liberal judges have deferred to legislatures and validated their efforts to remedy civil rights violations. And while southern states invoked "states' rights" rhetoric to justify slavery and secession, states have also invoked this concept in order to defy conservative federal policy on matters ranging from fugitive slaves, the environment, and criminal justice. Perhaps conservatives could find their "voice" in contemporary United States politics if they had the courage and creativity to view the Iowa ruling, for better or worse, as an exercise of state autonomy that traditional conservatives should respect.

The debate over the Iowa ruling, however, must not rest on the empty concept of judicial activism. If people disagree with the substance of the court's decision, they should debate the ruling on its own terms. Resorting to politically charged and bankrupt rhetoric will not advance discourse on this important subject.

Related Reading on Dissenting Justice: Iowa Supreme Court Strikes Down Gay Marriage Ban

On My Reading List - Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel

A growing body of legal and political science scholarship attempts to demonstrate that courts operate in a political and cultural context. In the United States, this work has examined how evolving international and domestic politics have influenced judicial opinions in the context of civil rights, economic regulation, and other important issues.

This important scholarship places judicial opinions in a broader social context, and it provides a framework for understanding court doctrine as a product of legislative, executive, and social movement activity. For that reason, I am excited to find the following recent publication: Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel.

Synopsis
Patricia J. Woods examines a controversial issue in the politics of many countries around the world: the increasing role that courts and justices have played in deeply charged political battles. Through an extensive case study of the religious-secular conflict in Israel, she argues that the most important determining factor explaining when, why, and how national courts enter into the world of divisive politics is found in the intellectual or judicial communities with whom justices live, work, and think about the law on a daily basis. The interaction among members of this community, Woods maintains, is an organic, sociological process of intellectual exchange that over time culminates in new legal norms that may, through court cases, become binding legal principles. Given the right conditions--electoral democracy, basic judicial independence, and some institutional constraints--courts may use these new legal norms as the basis for a jurisprudence that justifies hearing controversial cases and allows for creative answers to major issues of national political contention.

Advanced Praise
"This well-written book makes an important contribution by pushing the analysis of the controversies surrounding judicial intervention/activism to take ideas seriously. It provides a very persuasive account of Israel's High Court of Justice's involvement in religious issues and the key role of the judicial community in precipitating that involvement. At the same time, Woods attends to the roles of institutional factors and social movements in facilitating the controversial rights actions/decisions of the HCJ. This book is a must read for scholars of law and politics."

-- Austin Sarat, Amherst College

"The author's notion of an extended judicial community of judges, academic lawyers, and cause lawyers is a major move forward in the `new institutionalism' in the study of law and courts."

-- Martin Shapiro, Boalt Law School, University of California at Berkeley