Activist Judges

Paul Gewirtz and Chad Golder have an op-ed piece in the Times defining activist judges:

...we've identified one reasonably objective and quantifiable measure of a judge's activism, and we've used it to assess the records of the justices on the current Supreme Court.

Here is the question we asked: How often has each justice voted to strike down a law passed by Congress?

Declaring an act of Congress unconstitutional is the boldest thing a judge can do. That's because Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy.

...

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like one reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994, by our count it has upheld or struck down 64 Congressional provisions.

The results may surprise you, unless you happen to know that Prof. Gewiritz is a Lieberman Democrat, and you keep in mind that the Times volunteered to run this.

In any case, I question both their definition and their methodology.

First, an activist judge may be viewed as one who considers the Constitution to be an impediment to the sensible, well-intentioned proliferation of laws and regulations by both the courts and the Congress.  The Gewirtz standard seems to set the court against the Congress, but in a different definition, Congress will fullfill its institutional imperative to expand its power, as will an activist court - the expansion of Federal power does not need to be a zero-sum game between the Court and the Congress.

In which case, a "conservative" judge would be one who defends the Constitution against both the Congress and activist judges.

As to methodology, Clinton's veto pen shielded the liberal justices for eight years [OK, do I hear six?] - for example, the Federal ban on partial birth abortions vetoed by Clinton and signed by Bush has not yet come to the Supreme Court.  (And let's remember the Dems controlled the Senate for much of 2001/'02.)

UPDATE:  Orin Kerr and QandO dispute Gewirtz as well; he finds support at Memeorandum.

Comments

[Patrick R. Sullivan]

Did Miranda strike down a law made by congress? Roe v Wade? The prayer in public schools case?

Or did activist judges simply create 'rights' out of thin air.

[Brainster]

"As to methodology, Clinton's veto pen shielded the liberal justices for eight years..."

Actually six years, Tom, since their study starts in 1994.

I also wonder about the focus on federal law; might we find a quite different result if the question had been how often justices strike down state and local laws?

[Patrick]

It would seem that a definition of "activist judge" would need more than the single example laid out in the Times today. Seeing as the Federal Government didn't really start to expand until after the Civil War, it's no wonder that only two federal laws were struck down before that time.

Without any kind of information on the cases that the Court heard the numbers listed are meaningless. What a waste of space.

[Cecil Turner]

"Or did activist judges simply create 'rights' out of thin air."

Exactly. "A marked pattern of invalidating Congressional laws" is not the major concern for most who complain about judicial activism. "Legislating from the bench" is.

[TM]

Actually six years, Tom...

Well, it sure seemed longer.

Looks like I picked a bad morning to switch to decaf.

[TexasToast]

So we are returning to “artful” judiciary bashing! :) Last time I checked - 7 of the 9 current serving justices of SCOTUS were still appointed by Republicans, and it appears this trend will continue! To judiciary bashers, "activist" seems to mean decision I don't like. So - I repeat - the most obvious case of "judicial activism" in recent history is the decision by the SCOTUS in Bush v Gore in which they found an equal protection clause violation that had never existed before and proceeded to insure that it would never be found again by saying that the case had no precedential value. The Democrats lost that election 5-4.
Lets remember what one of the foremost “bashers” (Tom Delay) has to say on the subject.
“I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them.”
So, we should “legislate form the bench” to overturn Marbury, Griswold, and the establishment clause. That’s true judicial restraint?
Again, the people have many remedies for any overreach by the judiciary. Among them, reenacting legislation, adjusting jurisdiction, impeachment, and in fundamental law cases, amendment of the constitution. The courts have no power to enforce their judgments, so their part of our system of checks and balances remains fundamentally dependant on the respect of the other branches of government and the people. Courts do not “legislate” – but they do “interpret” – and many see “legislation” in any interpretation that they – from their “disinterested” point of view – disagree with. Their energy, to my mind, would be better spent trying to change public opinion to change the law, as interpreted, and not by throwing bricks at the referees.
ISTM that Judiciary Basher’s undermine the respect necessary in a republican form of government to the referee – and give aid and comfort to those who claim the right to “stand in the schoolhouse door” or establish their religious and moral tenants as part of fundamental civil law.

[kbiel]

So - I repeat - the most obvious case of "judicial activism" in recent history is the decision by the SCOTUS in Bush v Gore in which they found an equal protection clause violation that had never existed before and proceeded to insure that it would never be found again by saying that the case had no precedential value. The Democrats lost that election 5-4.

I know that facts only get in the way of your arguement, but I'll throw a few your way in the hope you might pay attention just this once. The Florida supreme court overruled (but did not strike down) the law regarding recounts in Florida, citing equal protection. SCOTUS, after the case sped through the federal appeals courts, told the Florida supreme court that they can not make policy, especially policy that disregards a law which they failed to rule unconstitutional.

Regardless, the post election recounts by all the major news organizations still could not conjure up a majority for Gore, even with the most favorable reading of the ballots. So whether or not you continue to believe that SCOTUS was wrong, the outcome would have been the same.

Find a new argument.

[creepy dude]

Ignorance pervades this whole area TM.

E. g. take the odious fool Mark Levin, author of a recent right wing screed excoriating activism. Check this moron:

In a July 4 post at NR Bench Memos-( http://bench.nationalreview.com/archives/068233.asp )Levin tries to argue that Dred Scott was an activist decision since "it held slaves were property, among other things."

To support his case, Levin writes: "There is NOTHING in the Constitution that endorses or establishes slavery or segregation." (emphasis Levin's).

Apparently Levin has never read Article IV Section 2 Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

And this is Limbaugh and Hannity's go to guy for legal analysis. It's truly embarassing.

[TexasToast]

Kbiel

”I know that facts only get in the way of your arguement, but I'll throw a few your way in the hope you might pay attention just this once.”

OT

Thanks! I’ll try to pay better attention to the “facts.” Can you explain slowly why the Florida Supreme Court was "rewriting established election procedures"? Florida had a recount statute! It was GWB who filed suit from the beginning to enjoin hand recounts, GWB who arranged for a riot to stop hand recounts, and GWB who worked to delay the recount as much as possible so that it couldn't be completed by the federal deadline. If you don't agree with this analysis, explain what exactly you felt the recount provisions in Florida Law meant.

ISTM that there were perfectly good non-judicial ways around the SCOFLA – e.g, let the legislature pick the electors, or challenge their credentials in the Electoral College. SCOTUS did not have to get involved, but chose to impose a judicial result when a non-judicial remedy was available – thus, an egregious example of “result-oriented” judicial activism.

Still, lets here what Al Gore said about it, “Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.”

Look like he still has respect for the courts.

[TexasToast]

Kbiel

”I know that facts only get in the way of your arguement, but I'll throw a few your way in the hope you might pay attention just this once.”

OT

Thanks! I’ll try to pay better attention to the “facts.” Can you explain slowly why the Florida Supreme Court was "rewriting established election procedures"? Florida had a recount statute! It was GWB who filed suit from the beginning to enjoin hand recounts, GWB who arranged for a riot to stop hand recounts, and GWB who worked to delay the recount as much as possible so that it couldn't be completed by the federal deadline. If you don't agree with this analysis, explain what exactly you felt the recount provisions in Florida Law meant.

ISTM that there were perfectly good non-judicial ways around the SCOFLA – e.g, let the legislature pick the electors, or challenge their credentials in the Electoral College. SCOTUS did not have to get involved, but chose to impose a judicial result when a non-judicial remedy was available – thus, an egregious example of “result-oriented” judicial activism.

Still, lets here what Al Gore said about it, “Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.”

Look like he still has respect for the courts.

[TM]

Orin Kerr of Team Volokh comments on this.

As to Florida - remember, there was a 7-2 vote that the SCOFLAs were wrong, and a 5-4 vote to stop the recount.

How those 2 that switched thought it would be a good idea to continue an illegal recount has always puzzled me.

And Abe Lincoln himself argued that the section of Dred Scott dealing with the Missouri Compromise was judicial activism. How that squares with Levin, I don't care to guess.

[Crank]

The omission of state and local laws - presumably on the ground that they do not bear "a high degree of democratic legitimacy" - is obviously very deliberate, and we lawyers can draw an adverse inference against the op-ed writers by their deliberate omission of this category.

As for Bush v. Gore, I'd refer you here for a good start. The central point to recall about Bush v. Gore is that the Supreme Court's analysis was limited to striking down a non-statutorily based judicial remedy crafted by an appellate court.

[tyro]

Creepy Dude,

Your criticism of Levin is unfounded. The provision you cite (now inoperative because of the 13th amendment) is a provision that, in effect, extended the full faith and credit clause to slavery. It does not "endorse or establish slavery." The provision itself is neutral on the subject.

[wm. tyroler]

The very 1st comment, referencing Miranda is astute: as some pundit (Can't recall where I saw it; believe it was on volokh.com) noted, Congress passed a law purporting to overrule Miranda, but the SCt struck it down in Dickerson, and thus preserved Miranda. The Gewirtz-Golder methodology would place Dickerson on the "activist" side of the ledger -- yet by any sensible rendering, it's a "conservative" opinion: it conserves long-standing precedent. More: what it conserves is perhaps the preeminent symbol of Warren Court liberal activism.

Which is to suggest, of course, that merely voting to strike down legislation is not necessarily either "activist" or partisan. The Gewirtz-Golder methodology is much too facile; back to the drawing boards for them.