THEY ARE ALL ACTIVISTS NOW

By MICHAEL C. DORF
Monday, May 01, 2000

George W. Bush has stated that if he were elected President, he would appoint "strict constructionists" to the federal bench. With this promise, Bush courts social conservatives within the Republican Party -- who praise conservative judges' "strict constructionism" at the same time they decry liberal jurists' "judicial activism." Ironically, however, on the Supreme Court accusations of "judicial activism" have been flying in precisely the opposite direction: there, "judicial activism" has recently become a term used by liberal Justices to critique conservative Justices' views. It is time that we recognize that judicial activism is not ideological. Rather, in our current constitutional discourse, it is inevitable.

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For conservatives, "judicial activism" is epitomized by the leading liberal Supreme Court decisions. The most prominent, of course, is Roe v. Wade, recognizing abortion rights. Some other leading targets are Miranda v. Arizona, requiring that warnings precede custodial interrogation of criminal suspects; Engel v. Vitale, prohibiting organized prayer in the public schools; and Romer v. Evans, invalidating a Colorado referendum that withdrew the protection of local anti-discrimination law from gays and lesbians. Each of these decisions (and others) has become a bête noir of judicial conservatives -- who claim each is illegitimately grounded in the Justices' personal morality rather than in the Constitution. Vote for me, George W. signals, and I will see to it that liberal judges stay out of politics.

Within the Supreme Court, however, it is the (moderate to) liberal Justices who have lately been accusing their conservative colleagues of judicial activism. The decision earlier this year in Kimel v. Florida Board of Regents provides a prime example. There, the Court issued a 5-4 ruling that states could not be sued for age discrimination because of a general principle of state sovereign immunity. Kimel is a conservative decision in two senses. It expands states' rights (here, the right of the state not to be subject to private lawsuits) and constricts anti-discrimination (here, age-discrimination) law. Kimel is also an activist decision -- going far beyond the text of the Constitution.

The Constitution does not expressly say, as Kimel held, that citizens cannot sue the States. On the contrary, it implies that they can. The Eleventh Amendment expressly prohibits only those lawsuits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State" -- and thus implicitly authorizes a lawsuit against a state by one of its own citizens. Accordingly, in his dissent in Kimel, Justice Stevens angrily declared that "the kind of judicial activism manifested in such cases represents such a radical departure from the proper role of th[e] Court that it should be opposed whenever the opportunity arises."

This is hardly the first time a liberal Justice has accused a conservative majority of the Court of activism in the state sovereign immunity context. Far from it. Dissenting in one case recognizing state sovereign immunity, Justice Souter faulted the majority for relying on principles of "natural law." In a similar dissent, Justice Breyer compared the Court's reasoning to the infamous decision in Lochner v. New York -- a case whose very name has become synonymous with judicial overreaching. And in a third such dissent, Justice Stevens derisively described the majority as locating rules of law in the "penumbras" of the Eleventh Amendment -- a reference to Justice Douglas's opinion in Griswold v. Connecticut, in which the Court found a right to contraception in the Fourteenth Amendment's due process clause.

It may be tempting to think that we are witnessing the latest swing in the pendular path of attitudes towards judicial review. A case for that viewpoint could be made. In the first half of the Nineteenth Century, defenders of southern, agricultural interests decried the nationalizing, pro-commercial impulses of what they saw as an activist Court, under the leadership of Chief Justice John Marshall. In the second half of the Nineteenth Century, abolitionists railed against what they saw as the Taney Court's activist invocation of the Constitution to extend protection to slavery in the territories. From the late Nineteenth Century through the first third of the Twentieth, Populists, Progressives, and finally New Dealers challenged what they saw as the Court's activist view that the Constitution required laissez-faire capitalism. After a very brief post-War quiescence, in 1954 Brown v. Board of Education fully launched the period of the liberal Warren Court's "activist" decisions. That period has been winding down since Richard Nixon was elected president in 1968. It therefore could be argued that the current realignment within the Court -- in which the conservatives are once again accused of being the activists -- is occurring right on cue, more or less at the beginning of the fifth half-century of American constitutional law. On this theory, activism, like the British monarchy, itself persists even as activists succeed one another: judicial activism is dead; long live judicial activism.

Yet this cyclical account omits the extent to which all of the current Justices -- not just the conservatives who endorse states' rights -- still believe in potent judicial power. All of the Justices are activists now -- in a sense. The liberals on the Court remain committed to the landmark decisions of the Warren and early Burger Courts. Surely Justice Stevens' derisive invocation of Griswold's penumbras was not meant to suggest that he would now overrule Griswold's right to contraception. Instead, Justice Stevens' reference is best interpreted as an accusation of hypocrisy -- a suggestion that the conservatives only believe that rights have penumbras when it suits them, such as when states', not individuals', rights are at issue.

But charges of "hypocrisy," like charges of "judicial activism," cut both ways. For example, when the Fourth Circuit Court of Appeals struck down the Violence Against Women Act (a decision recently affirmed by the Supreme Court in a 5-4 decision in U.S. v. Morrison), Judge Wilkinson's concurrence distinguished judicial activism when the courts act as a "structural referee" among the branches and levels of government from activism in defense of individual rights. It is the liberals, he argued, who are the hypocrites in this debate.

Thus, conservatives condemn judicial activism in the name of individual rights while endorsing it in the name of states' rights. Conversely, liberals condemn judicial activism in the name of states' rights while endorsing it in the name of individual rights.

Is there an alternative? Justices O'Connor and Kennedy have indicated some willingness to protect both the states and individuals through what might be termed an all-purpose activism. Thus, although they join with Chief Justice Rehnquist, Justice Scalia and Justice Thomas in striking down federal laws on state sovereignty grounds (e.g., United States v. Lopez, Printz v. United States), they also join the liberal camp in protecting a woman's right to abortion (Planned Parenthood v. Casey) and in invalidating egregious denials of equality to gays and lesbians (Romer v. Evans). However, while even-handed judicial activism such as O'Connor's and Kennedy's may avoid the charge of hypocrisy, this sort of even-handedness certainly will not satisfy anyone who sincerely believes that judges should generally defer to political actors in hard cases.

Not one of the current Justices takes that position. That is not surprising. The constitutional architecture of checks and balances presumes that each institution -- the Court no less than the other branches -- will seek to maximize its own power at the expense of the others. For example, in Kimel, while the nine Justices disagreed vehemently as to the proper result, they apparently all concurred in the majority's statement that the Court, rather than Congress, has the first and last word on the meaning of the Constitution (specifically, in that case, its conception of equality). Thus, despite their disagreement about which brand of activism is good and which bad, the Justices are unanimous in preferring their own power to that of other actors.

Given the trajectory of American constitutional law over the last two centuries, an activist role for the Court now appears all but inevitable. At the same time, because judicial review has always sat somewhat uncomfortably with democratic ideals, periodic accusations that the Court has engaged in unwarranted activism are equally inevitable. We should recognize that such accusations are rarely meant as a genuine critique of judicial power. Instead, they are best understood as a stylized form of constitutional rhetoric. So long as the Supreme Court exercises the power of judicial review, the accusation of activism itself will be largely empty. We should look beneath it, to the substantive arguments it can only mask.


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University. He is the author of the 1998 Harvard Law Review Foreword and co-author, with Laurence H. Tribe, of On Reading the Constitution. Currently, he is working with Charles F. Sabel on a book, Democratic Experimentalism, to be published by Harvard University Press.

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