Judicial Activism De Jure & De Facto

Defenders of the President's recent faux pas on judicial review tend to focus on the following sentence in the now infamous paragraph:

And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.

This remark unfortunately confuses two issues: judicial activism vs. judicial restraint and judicial review, i.e., the power of "unelected" judges to strike down a "duly constituted and passed law." They are not at all the same thing. You might find the occasional scholar who thinks that judicial review is a mistake. This is not at all a typical position for conservatives or anyone else.

Judicial activism is something that conservatives almost universally oppose. It does not, however, mean what the left seems to think that it means. It doesn't mean doing something exciting or deciding some important question in a way that conservatives prefer.

Judicial activism means legislating from the bench. If a judge thinks that it is part of his job to make sure that the right policies are enacted and the right social outcomes are achieved, then he is certainly a judicial activist. The best example is Justice Brennan on the death penalty and Justice Blackmun on abortion. Brennan tried with all his considerable might to strike down the death penalty despite the fact that it is explicitly constitutional. He did so because he believed that the death penalty ought to be abolished, and that the Court should more sensitive to human dignity. Justice Blackmun, when asked why the Court created a right to abortion, offered no reasoning based on the Constitution or precedents or history. He just replied "I think it's about time, don't you?"

Judicial restraint means that the judge ought to confine herself or himself to saying what the law is, whether he likes it or not. In this view, the judge should act like an umpire in baseball, whose job is call a strike a strike, not to make sure that the cubs finally win a series. Justice Scalia voted to strike down a Texas law banning flag burning. It wasn't because he had any sympathy for flag burners. It is because he thought that the Constitution's principle of free speech was clear.

Unfortunately, it is not always so easy to tell. In Bush v. Gore, did the majority vote the way they did because of the principles they decided the case on or because they wanted Bush to win? If you think you know the answer, you are naïve. It is quite possible that the Justices don't know the answer. I think the Court's decision was correct because it is patently unconstitutional to change the rules of elections after an election. Of course, I also wanted Bush to win.

Citizens United v. FEC was manifestly not a case of judicial activism, despite conventional wisdom to the contrary. This is so because no one could guess in advance the policy outcomes or political consequences. The largest single donor in the last election was a public employees union. Barack Obama, after promising not to use a Super PAC, decided to break his promise. Go figure. I think the case was rightly decided nonetheless because corporations are in fact legal persons and in fact have constitutional rights recognized in an extensive body of cases.

It is possible of course that the four conservative justices and the king of swing will strike down ObamaCare because of political sentiments while claiming to do so because of constitutional principles and that the four liberal justices will vote the other way for the same reasons. If that were true, then everyone on the Court is a de facto if not a de jure judicial activist.

I do not think that is what is going on. The four liberal justices really believe that the commerce clause allows the mandate and Justice Kennedy is really concerned about relationship between the Federal Government and the citizen. The issue of judicial activism is a red herring. This is a genuine disagreement about the scope and powers of Congress under the Constitution.

Comments

[Stan Gibilisco]

If the Supreme Court strikes down any part of the health-care law as unconstitutional, then Barack Obama will suffer a tremendous embarassment. We would then have a President who is a constitutional law professor, and whose landmark achievement was declared, at least in part, unconstitional.

I can't imagine that Romney and his crew wouldn't have a real field day with that business.

No wonder the President got so riled up the other day. Mr. Cool finally came unglued.

Alas, I fear that the Supreme Court has become balkanized along with just about every other aspect of today's world. Another few years and we won't even have to think anymore. We can just hurl bile at each other.

All that said, I don't know how the court will rule on this issue. I sort of sense, however, that the law will be upheld 5-4.

[Bill Fleming]

Any way you want to look at it, KB, the SCOTUS decides what the law is.

That's their job.

And to pretend they're not politically motivated is just that.

Pretending.

[Bill Fleming]

I think the SCOTUS voted the way they did (and Gore agreed to accept their decisision) in order to avoid a constitutional crisis. Many (including Thomas Jefferson, and recently Larry Sabato) feel that our Counstitution is in some ways outdated and needs an overhaul. I think it's a discussion worth having. http://amoreperfectconstitution.com/

[duggersd]

Ken, I have to disagree with one of your comments. You said "It does not, however, mean what the left seems to think that it means." The left (liberals) knows good and well what judicial activism means. They only try to change the meaning so they seem to be reasonable. They have to because if they cannot change the meaning, they are unreasonable.

[A.I.]

President Obama used a right-wing tactic to challenge the court and now you're crying foul KB. As your rhetorical gymnastics in the post demonstrate, there is a fine line between "judicial review" and "judicial activism", at least in the eyes of the casual observer--a term that would describe most voters.

Obama said the court is being activist and now the onus is on the Right to prove him wrong. That's a tall order once the notion is implanted in peoples minds. Score one for the President, or put another way, what goes around comes around--ha, ha.

[Donald Pay]

Let's just say that when it comes to following the law or legal precedent, the KB and most Republicans are as "flexible" as a Slinky. The party that likes to pretend in "absolute values," beomes the party of situational ethics. As long as a Republican is doing something illegal or holds a particular view, that's just fine. If a Democrat holds that view, then that's not fine.

To bring up the obvious, Romney gets out his Etch-a-Sketch, and attempts to erase any evidence of any previous position. KB is a bit more creative in the post above. He doesn't bother to erase anything. He just adds little bit here and there to try to camoflage and cross out things. Maybe you won't notice he's full of...er, slime.

Just of fun, let's look at Mr. Car Elevator Man, my friends. On the Monday before the Wisconsin primary Romney violated Wisconsin law (also, I believe, on the books in South Dakota) that you can't give people anything of value (in Wisconsin, defined as something over $1 in value) as you encourage them to vote for you. Stickers are fine, but Romney, along with Paul Ryan, who should know better, were serving up free Cousin's subway sandwiches (valued at around $5-6) to potential voters, who were then advised to go vote for Romney. Of course when Republicans accused Al Gore supporters of giving cigarettes to poor people to encourage them to go to the polls to vote, Republicans screamed "voter fraud."

Well, my friends, what we have here is Republican "voter fraud." We'll see whether the Republican prosecutor brings charges, but in Republican world, where children's toys trump honesty and integrity, Republican face an Etch-a-Sketch moment. Romney and Ryan would jump up immensely in my estimation if they would turn themselves in, apologize and pay their fine. Let's see if they have that sort of integrity.

[Ken Blanchard]

A.I.: your comments have become so jaundiced that I hardly know how to respond to them. I think I have accurately distinguished the views of the left and the right on judicial power. I have fully acknowledged that a judge pretend to one view while in fact practicing another. Is it mental gymnastics to make distinctions?

It is apparent now that whatever the President says or does, you will argue that it achieved some kind of moral and strategic perfection. Okay. It must be nice to love with all your heart.

[Ken Blanchard]

Bill: I think that Catholic hospitals should not be forced to dispense contraceptives. I do not think that they have a constitutional right to refuse to do so. I have just demonstrated that it is possible to distinguish between one's political views and one's view of what the Constitution demands. Should judges make such a distinction? That is what divides the right and left in this matter, and it is perfectly coherent even if the law is what the judges say it is and judges are not above politics.

[larry kurtz]

The Catholic Justices on the Court should have recused themselves from this decision in the first place as the Holy Roman Kiddie Diddlers control such a monstrous portion of health care in the US, especially in light of more Vatican wrongdoing.

Right to life, indeed.

[Bill Fleming]

Not saying it's not possible, KB. But if you just expect justices to be mechanics

a) I think you're kidding yourself and

b) if one is to be a final arbiter of the most critical issues of the land I would hope they would bring more to the party than a good grasp of semantics.

i.e. perhaps you argue for the letter of the law, while I argue for the spirit of it. Unlike you, I don't consider the authors of the Constitution to be especially good writers when it comest to "intent." Hence the need for the High Court in the first place. We have, afterall an imperfect Union (as per the Preamble.)

If I am missing your point (always possible) please clarify.

[Mark Anderson]

Hey, even Roe v. Wade was 7 to 2. All this court does is 5 to 4, wonderful for building trust. Since I live in Florida, it's easy to say, they wanted Bush to win..

[A.I.]

Jaundiced? OK, if you say so KB. I was thinking more snide and smacking of one reveling in schadenfreude, but I suppose jaundiced might be fair.

You did seem to miss my point though. Whether or not you "accurately distinguished the views of the left and the right on judicial power", is a moot point. You are engaging in the same rather feudal effort the Left often does in trying to counter the "activist" accusation. It may play in the Right's echo chamber as it does in the Left's, but nobody else gives a crap about reasoning as finely parsed as "pink slime" is ground.

This isn't about a scholarly discussion of checks and balances, it's politics. One might say Scalia politicized the review process by regurgitating conservative talking points during oral arguments. Obama did him one better by saying a rejection of the mandate would have a political element and now the right has come unglued protesting that characterization. To me, as a politically jaudiced observer, that is hilarious--in a schadenfreude sort of way.

[larry kurtz]

"Tell Justice Clarence Thomas: Recuse yourself from deliberations on the constitutionality of health care reform."

http://act.credoaction.com/campaign/recuse_clarence_thomas/?rc=tw2

[A.I.]

I just reread your response and realize you really don't get what I was saying. It isn't that much of your post isn't accurate, its that you don't seem to realize what just happened. In essence, Obama just declared war that the Right can't win. He put the court on the defensive saying if they are going to negate his signature legislation with obvious political overtones and questionable legal grounds, there is going to be a hit to their reputation. They are going to be painted with the same broad "activist" brush as the right has long painted previous "liberal" courts.

I could waste some pixels defending those earlier courts much as you did the current one. I could note they too may or may not have acted on political biases. But the fact remains, Obama put the court on the defensive and now the right is squirming. I don't consider that "moral and strategic perfection", I consider it down and dirty politics. And as for efforts to counter Obama's attack, defense just looks like whining--same as it does for the Left.

[Bill Fleming]

A.I. I think Justices Roberts and Kennedy are probably squirming, and perhaps also resenting all the prior table pounding from the right. It was indeed a crafty political gambit. (Because hey, "down and dirty" is such a pedestrian way to put it, isn't it? ;^) In any case, it would be naive to think Obama was being obtuse here. Like you, I think he knew exactly what he was doing, and why. It's like when you get a runner in a pickle between second and third. Only one of the infielders involved isn't really on your side, at least not willingly. LOL.

[Ken Blanchard]

Bill: No one has suggested that the constitution can be read "mechanically". There is, however, a big difference in the views of left and right regarding how the Constitution should be read by judges.

Your version is fair enough: you think that judges should regard the spirit of the law and I think that judges should read what the Constitution actually says (poorly written or not). Okay, but where do judges look to determine the spirit? When Brennan and Marshall argued against the death penalty, neither could deny the letter of the law. So they looked instead to an amorphous evolving morality. But how does one know what is a more or less evolved morality? Both judges had to admit that the death penalty was overwhelmingly popular and was authoritatively affirmed by most state constitutions. Well, said, Marshall, the people would be opposed to it if they knew as much as we do. So the standard of evolved morality was Brennan and Marshall's personal views. THAT is judicial activism at its highest.

If you think that that is kosher, imagine if by some accident the Court ends up with seven ardent pro-lifers and they declare that legal abortion is a violation of equal protection. Have you any grounds on which to object? But you don't have to worry about Scalia or Thomas or Alito or Roberts. They don't think that the constitution says anything about abortion, so they would not endorse such a decision regardless of their personal views.

Despite what I have just said, I don't think we are all that far apart. I believe that your political opinions are fully protected by freedom of speech and I assume you think the same about me. While our political biases might influence the way we read marginal cases (like Citizens United), that doesn't stop us from agreeing on a broad principle that is politically neutral.

[Ken Blanchard]

A.I.: I think that the President's remarks about judicial activism were the least questionable part of the quoted passage. Some conservatives have accused the President of trying to bully the Court, an accusation that I did not endorse. You seem to think that this was precisely what the President was trying to do and you think it was brilliant.

Perhaps it would have been, if he hadn't begun it by speaking as if he were unaware of judicial review and making claims about the ACA that were manifestly false. By taking the strategy that you enthusiastically endorse, the President is clearly trying to undermine the authority of the Court. Won't Republicans be able to use the President's very words if the tables are turned and the Court is preparing to strike down legislation passed by a Republican Congress?

It may be possible to make a case for judicial activism is the Court does strike down the ACA. That will depend largely on what the opinion says. It would hardly be enough to say that the decision rests on "questionable legal grounds." That just means that you disagree with it. You would have to show at the very least that the majority is contradicting principles that they themselves have previously endorsed and applied. To infer judicial activism from the mere fact that a court might strike down a piece of duly enacted legislation is to reject the basic function of the Court.

[Donald Pay]

"The issue of judicial activism is a red herring. This is a genuine disagreement about the scope and powers of Congress under the Constitution."

Pretty weak. Every case involving a duly enacted law involves this. Thus, we have it from KB: the decades long position of conservatives regarding "judicial activism" is a red herring.

[Ken Blanchard]

A.I.: one final point. You write that "Obama put the court on the defensive and now the right is squirming." That is an example of your jaundice. Ruth Marcus, whom I quoted, is not on the right. The Washington Post, who took the President to task in similar terms, is not on the right.

[Ken Blanchard]

Bill: you have a different idea of crafty than I do. The President had to walk back his comment twice, after severe criticism from his own side. His Att. General had to issue a written explanation to a Court. If that is crafty, I would hate to see what bad craft looks like.

[Bill Fleming]

Okay. But here's the precident, KB. Lest we forget. http://www.youtube.com/watch?v=QffazQIdVlM

[A.I.]

Circumspection doesn't seem to be your long suit KB. You just don't get that every protestation from yourself, conservative pundits and the Right in general re-enforces my point: Obama put you all in a trap from which there is no escape, that being the "activist" trap. And the sweet irony is that it is the same trap the Right has foisted on the Left for decades.

Of course you can protest that Obama got it wrong when he basically said judicial review is unprecedented. But, he then got the opportunity to elaborate/clarify the next day by explaining it would be unprecedented--since the New Deal--for the court to negate an act of congress dealing with interstate commerce. Translation: Deny the right of judicial review, who me? Of course the court can review, but only while exercising restraint and recognizing precedence. And then he threw in Lochner.

At that point, Obama defined the argument in terms friendly to his position and goals. The right is left to knit-pick over issues like the size of the majority that passed the ACA and Obama description of it. By the way, a 60 to 39 majoity in the Senate seems pretty lop-sided to me.

Is he "bullying" the court. I really don't know because in this instance there is a fine line between bullying and explaining consequences the court would bring upon itself by striking the mandate or the entire act.

[Bill Fleming]

"His Att. General had to issue a written explanation to a Court" ...because a goofy judge asked him to do it, making a fool of himself in the process.

[Bill Fleming]

Speaking of political hack judges, KB. Thanks for bring up Jerry Smith. His is a perfect case in point:
http://www.dailykos.com/story/2012/04/04/1080691/-The-latest-wingnut-jerka-Judge-Jerry-E-Smith-5th-Circuit-Court-of-Appeals-

[lynn]

Obama apparently doesn't think much of unelected officials making law. But he ignores his unelected officials/czars and the laws/regs they make with no oversight from the actual elected officials.