Judicial Activism

A fascinating op-ed in the New York Times discusses the idea of “judicial activism.” The authors suggest that one measure of activism is the amount of times a judge votes to invalidate legislation passed by Congress. Using that measure, they write that:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent.

The op-ed is subject to critique, of course. For example, Jack Balkin has some interesting thoughts here.

I personally don’t think that the “activist” label conveys much useful information. As the Gewirtz study shows, judges of all different political persuasions strike down statutes all the time.

It will be tempting for liberals to try to hoist conservatives on the activism petard now, using these statistics. But a better course would be to inter the “activist” label altogether. The Gewirtz study highlights the relatively useless nature of the label “activist.”

69 comments for “Judicial Activism

  1. July 6, 2005 at 11:26 am

    Correlating the term “activist” with a specific political persuasion may be a moot point if the studies are valid, but the term “activist” alone still carries its own weight. I would rather have a liberal left wing Democrat judge that follows the letter of the law than a conservative right wing Republican judge that thinks he alone knows better what the law is than those who founded that law.

    Its actually a pretty good litmus test that could potentially avoid partisain judges.

  2. A. Greenwood
    July 6, 2005 at 11:46 am

    Not being under the sway of the New York Times, it’s fairly easy for me to see that their criticism of the use of ‘activism’ is only persuasive if you accept their definition of it.

  3. Kaimi
    July 6, 2005 at 11:51 am

    How is their definition off the mark, Adam? Isn’t activism generally characterized by striking down statutes passed by the legislature? That’s when the court is acting as a countermajoritarian body, after all.

    If you think that activism exists, then what exactly is activism, if not court decisions that strike down statutes passed by the legislature?

  4. Karen
    July 6, 2005 at 12:00 pm

    Very interesting post Kaimi. I’ve always found the term activist to be so subjective as to be useless. Honestly, it seems to me to be a shortcut for conservatives to criticize judges they don’t like without having to articulate why they don’t like them. However, I really wouldn’t make that accusation against the very articulate lawyers here at T&S. I’m honestly curious as to how you conservative lawyers define the term “activism.” Matt? Nate? (okay, you don’t have to accept the conservative label…just curious as to what you think…) Adam? Others?

  5. lyle stamps
    July 6, 2005 at 12:06 pm

    Kaimi’s definition of “activism” as striking down legislation (I suspect) was crafted by liberals to shield their own activism by finding a measure that tarred the other side while deflecting criticism of their own methods.

    I far better definition, and the one originally used (as far as I know), relates to when judges “invent” rights or laws that didn’t exist before; i.e. penumbras and abortion, etc. Under this definition, sometimes legislative measures and/or referendum laws are sometimes, but def. not always, struck down, by ‘activist’ judges.

  6. john fowles
    July 6, 2005 at 12:18 pm

    Kaimi, you can define judicial activism any way you like to come to the conclusions you want to force. But when conservatives speak of judicial activism, they are referring to judges departing from the Constitution to enact social legislation that a democratically elected legislature could never hope to achieve in this country. They are not talking about invalidating unconstitutional acts of Congress, which is what the judges are supposed to do.

    Yes, of course, liberals can turn the term judicial activism against conservatives, as have Senate democrats in the recent fights against Brown, Owens, and others, saying that since they have dissented, they are activists, etc. But if the previous course of the law was activist in the more traditional sense (Federalist 78) of judges looking at society and making decisions based on political and social ideology and then replacing mere judgment based on the text of what is included in the Constitution with their own will buffeted by the force the federal bench can lend their will, then steering the law back to strict constitutional principles isn’t really activism but merely fulfilling the proper role of the judiciary.

    I fully understand how you can deconstruct this view and show that the Constitution has no original meaning in the first place and that Thomas with his strict originalism is just as “activist” as liberal judges who find rights emanating out of constitutional penumbras. That is a neat academic excercise. Bravo. But it ignores what judges are supposed to do–strictly interpret the Constitution as written, and nothing else. If the American public wants new rights enshrined in the fabric of American society, then they need to amend the Constitution and have federal judges then enforce the new constitutional provision, and not legislate from the bench.

  7. Karen
    July 6, 2005 at 12:30 pm

    “But it ignores what judges are supposed to do–strictly interpret the Constitution as written, and nothing else.” John, this is an intriguing statement. What is your citation?

  8. July 6, 2005 at 12:36 pm

    One measure of judicial activism is how much exercise the judges get. By that standard, Justice Thomas, who bicycles, is more of an activist than…

    One of the things I learned way back in high school debate was that whoever got to define the terms generally won the argument.

    Lyle and John have given a pretty clear picture of how conservatives have been defining “activist” judges. Let me add another couple of clues: if Constitutional question is decided by relying on emanations and penumbras, rather than the text of the Constitution itself, it’s activist. If the answer to a Constitutional question changes based on evolving social standards and/or international law, it’s activist.

  9. Nate Oman
    July 6, 2005 at 12:41 pm

    No single word, no matter how polysyllabic, is going to be able to capture any significant jurisprudential position. To that extent, I Karen and Kaimi are correct that activism is not an especially useful label. II think that most conservatives (and liberals) who use the term as a label of derision for judges mean judges who go beyond legitimate interpretations of the law in order to enact their policy preferences under guise of adjudication.

    This, of course, begs the question of what constitutes legitimate interpretation and how one draws the distinction between jurisprudential theory and policy preference. However, it would be too glib to suppose that such question begging means that there are no answers to the question and that the concept of activism is without content. Indeed, in a sense the derision of activism can become nothing more than whistling at the funeral, if the derision is premised on the notion that there is no distinction between law and policy or between interpretation and legislation.

    Surely, even Kaimi, Karen, Greg, and other activism skeptics believe that there is such a thing as legitimate and illegitimate exercises of judicial power. At the very least, I suspect that they are willing to agree that there are better and worse interpretations of the law, as law. If this is so, then it seems to me that activism is not without content.

    Ultiamtely, I agree with Adam that this sort of counting the times laws are struck down approach is rather meaningless, or amounts to little more than political gotcha. However, I do think that activism is not a particularlly meaningful term until AFTER one has had the debate over law, policy, and interpretation. Yet precisely because that is a meaningful debate, I think that activism is a term that is not entirely devoid of usefulness.

    As for Thomas, I think that he is the most activist justice if you mean by activism a willingness to strike down (especially federal) legislation. On the other hand, I think that he is the most principled justice in terms of applying a consistent judicial philosophy. One may disagree with his approach, but he is equally willing to apply his theories to the Violence Against Women Act and the Control Substances Act.

  10. Nate Grow
    July 6, 2005 at 12:45 pm

    The problem with the study you cite is that it only looks at how the justices have voted in the 64 cases since 1994 in which the Supreme Court has overturned laws of Congress. It doesn’t take into account how the justices voted in cases where the Court has upheld laws of Congress that were challenged on constitutional grounds. Several of the more liberal-leaning Justices must have voted to strike down laws in dissenting opinions in cases where the majority of the court has voted to uphold a law. All this study shows is that the conservatives have a majority in the Supreme Court. Because they have a majority, they’re able to overturn more laws that they don’t like.

  11. Kaimi
    July 6, 2005 at 12:50 pm

    Nate Grow,

    As far as I can tell from the description of the study, it includes every vote to invalidate a statute, whether or not that vote was actually successful.

  12. Mark B.
    July 6, 2005 at 12:51 pm

    Actually, Adam, it wasn’t exactly the Times. It was Gewirtz and Golder in an op-ed piece (which may or may not reflect the opinion of the Times’s editorial board.

    I agree with Kaimi–the term “activist” is rather like the word “cult” among certain religionists. It really means “I don’ tlike that decision”, just as “cult” means “I don’t like your religion.” Let’s give the word a proper burial, and come up with other, more descriptive terms. (I’ll leave the first shot at that to others.)

    Following up on Karen’s comment #7, I think, John, that judges are supposed to decide cases–you know, the old “case and controversy” standard that Justice Brandeis articulated so well in his dissent in Ashwander v. TVA. And, your “strictly interpret the Constitution” is also problematic. I agree with the sentiment, but I’m not sure that one could articulate a neutral principle, applicable in all cases, that would tell us whether a certain interpretation was strict or not.

    For example, what of Marbury v. Madison? Did the court there simply strictly interpret the Constitution? If so, how can you tell?

  13. john fowles
    July 6, 2005 at 1:01 pm

    Karen, for one, Federalist 78 states that the judiciary “can take no active resolution whatever” and that it “may truly be said to have neither FORCE nor WILL, but merely judgment” in its role as the weakest of the branches of government.

    Kaimi, the notion of judges striking down acts of the currently elected democratic legislature because they are inconsistent with the text of the Constitution, which was the product of a previous democratic body, as a countermajoritarian act is interesting and embodies much of the countermajoritarianism of properly functioning federal courts. That is, after Marbury v. Madison, they can indeed trump Congress on questions of constitutional interpretation and thus by adhering to the original text of the Constitution, they can strike down the laws of the present democratically elected legislatures as unconstitutional. Alexander Bickel is informative on this point. I have written elsewhere that

    Ever since Marbury v. Madison 47 the concept of judicial review has thrived in U.S. constitutional jurisprudence. But the fact that unelected judges can override legislation created by elected representatives of the people seems undemocratic, even antidemocratic; in short, as Alexander Bickel notes, “judicial review is a counter-majoritarian force in our system.” 48 However, Alexander Hamilton in The Federalist No. 78 “denied … that judicial review constituted control by an unrepresentative minority of an elected majority.” 49 This conclusion “only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former.” 50 But even the highly valued stability that this ensures is “a countermajoritarian factor” 51 because in upholding the Constitution against an inconsistent current legislative enactment “it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the [*1140] prevailing majority, but against it.” 52 In short, the power of appointed justices not directly accountable to the voting public – such as those on the U.S. Supreme Court – over the elected legislature through judicial review renders the resulting de facto creation of political and social policy undemocratic.

    1129, 1139-40.
    Where, however, in the mandate of Marbury v. Madison is license granted the judiciary to invent rights a particular judge thinks or judges think should exist by inventing a penumbra that the writers of the provision from which the penumbra supposedly emanates could not possibly have envisioned or even remotely imagined (e.g. legalized abortion or sodomy in the minds of the drafters of the Fourteenth Amendment)?

  14. john fowles
    July 6, 2005 at 1:03 pm

    Somehow that last comment’s formatting got messed up. The blockquote reference was 2003 BYU L. Rev. 1129, 1139-1140

  15. john fowles
    July 6, 2005 at 1:43 pm

    Karen, that tidbit from Federalist 78 was a little cursory. In Federalist 78, in the context of an argument in favor of the tenure of federal judges and the independence of the judiciary, Hamilton claims to provide insight into what the “Convention” wanted with regards to the judiciary. He states

    According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

    Hamilton notes the rational behind an independent judiciary in this context:

    There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

    The proper role of judges is to ensure that the acts of the current democratically elected legislature do not put down the provisions of the master Constitution, or infringe on the rights granted therein. Liberals love to misconstrue conservatives as neither knowing nor loving civil rights. This isn’t true from my perspective. Conservatives, as far as I understand, are interested in the judiciary fulfilling its role in protecting the rights enshrined in the Constitution’s Bill of Rights, but draw the line where the judiciary exercises its will by the force of the bench to create rights that aren’t in the Constitution by any objective stretch of the imagination but can only be justified by (or “discovered” in) penumbra emanating from textual rights. Hamilton proceeds:

    If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

    This last bolded portion speaks directly to Kaimi’s apparently friendly view towards this new NYT definition of judicial activism as meaning federal judges declaring acts of Congress unconstitutional based on the text of the Constitution. For liberals who never agreed with Federalist 78 in the first place, this is an easy pill to swallow. But for those who ascribe some interpretative authority to Federalist 78, as well as to Marbury v. Madison, it seems that judges who do that, if they are basing their judgment that the congressional act is unconstitutional based on the text of the Constitution, are properly fulfilling their role as federal judges, and not engaging in judicial activism. This is very different from looking at a case and controversy, Mark B., and deciding based on a particular social ideology (rather than the text of the Constitution) that a new right needs to be created to address the particular perceived injustice at issue, and then “discovering” that right in a constitutional penumbra emanating from a textual provision of the Constitution (but not actually found in that provision, just nebulously floating in the penumbra). But don’t worry Mark B. and Karen, I know that no amount of quotation from sources such as Federalist 78 will convince a liberal that the discovery or announcement of such penumbral rights represent judicial tyranny. Still, it might help liberals who find the judicial invention of such rights to be justified based on the ends that such means achieve to understand rather than villify conservatives for the frustration they feel at having judges engage in this behavior.

    On the weight of the text of the Constitution Hamilton states that

    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

    It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. . . .

    If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

    Karen, I understand the counter-argument that what Hamilton wrote in Federalist 78 can’t possibly be representative of what the “Founders” collectively thought in drafting the Constitution. The point is well taken, but Marbury v. Madison doesn’t radically differ from this perspective and it is stare decisis, so Federalist 78 can be seen as merely informing Marbury v. Madison and not as telling us what the Constitutional Convention intended in drafting Article III of the Constitution (which is what Hamilton intended it to do and which is, I believe, very likely how the readership then and, to a large extent outside of postmodern critical legal studies, even today understood/understand it).

  16. Michael Linton
    July 6, 2005 at 2:00 pm

    Admittedly, I am a lawyer with a lack of serious interest in constitutional law as a practice specialty, but I think the extreme reaction against penumbras and related fundamental rights to be unwarranted. There are numerous rights which some will agree are fundamental and some will not. For example, included under the penumbra category is the right to marriage, the right to privacy, the right to freedom from governmental influence in sexual relations, etc.

    Whether I personally agree with Roe v. Wade or Casey or Gore v. Bush is largely irrelevant. The judiciary, although lacking the ability to create law per se, provides the checks and balances for the other branches by protecting minority interests from majoritarian oppression in violation of the Constitution. I may desire to say a prayer in school, I may not, I may not care one way or the other. But I am opposed to any governmental body mandating whether I say a prayer, how I say a prayer, and which religion I must subscribe to in order to receive an education or any other type of benefit provided by government.

    I forget the 3 or 4 methods of “acceptable” Constitutional interpretation. The only one that sticks in my mind is original intent, which is the most susceptible to personal interpretation and perhaps the least likely to account for cultural and social changes which occur. And to greater respect to the intellectual capabilities of the Founding Fathers without additional scrutiny and a view to the changes to our society in the interim is foolish in the extreme.

  17. July 6, 2005 at 2:16 pm

    Activist judges are almost always liberals precisely because they dislike the strictures of the Constitution, given that it and its amendments were written in more conservative times. Because amending the Constitution is very difficult, liberals must resort to distorting the Constitution in order to make it say what they think it should.

    For example, rather than persuade their fellow citizens that the Constitution should be amended to give Congress greater power, or to recognize a right to privacy, activist judges abused the language about Congress’ commerce power, and the “penumbras” of five unrelated amendments, to make laws they couldn’t or wouldn’t enact the ethical way.

    For this reason the argument in the NYT is absurd: it is because Thomas is the least activist among the current justices that he is the most insistent that Congress’ powers be enumerated in the Constitution, and therefore the most likely to strike down Congressional statutes.

  18. lyle stamps
    July 6, 2005 at 2:31 pm

    Michael: You got it exactly right on reasoning; but your outcome is suspect.

    Original intent, as you wrote, is “the least likely to account for cultural and social changes which occur.” Which is the point. The Constitution is a legal contract entered into by We the People, with explicit provisions for amendments. Therefore, if Original Intent is likely to force formal amendments to the constitution and ignore “cultural and social changes,” then it is far from “foolish in the extreme.” It is in fact the opposite: wise in the extreme. If culture and society have changed, then let’s see some constitutional amendments to prove it.

    Also, re: the Court as a protector of minority rights. Thats a shibboleth and canard if I ever heard one.

    Whatever happened to making a contract and living by it?

  19. Pete
    July 6, 2005 at 2:40 pm

    Ramesh Ponnuru fairly points out on NRO that

    “It stacks the deck against conservatives to include only invalidations of *federal* laws. That excludes every time the Court strikes down a local display of the Ten Commandments, a state ban on partial-birth abortion, a state death-penalty law, etc. If the federal government enforces federalism limits on the Congress, the test counts that as activism. If the Court subverts federalism by striking down local practices, the test excludes that altogether.”

    This dove-tails well with Kaimi’s rhetorical question, “what exactly is activism, if not court decisions that strike down statutes passed by the legislature?”

    The problem is, the NY Times piece looks only at invalidation of the federal legislature, when it is at least arguable that it is much more “activist” to use the *federal* constitution to invalidate state-created laws. At any rate, a fair analysis should include votes to invalidate both federal and state law–I would like to see the numbers.

  20. Greg Call
    July 6, 2005 at 3:02 pm

    Matt, Lyle, John:

    Was the Lochner court “activist” under your definition? Why or why not?

  21. john fowles
    July 6, 2005 at 3:24 pm

    Greg, what is different about Lochner is that the court was interpreting the substantive meaning and content of the rights triumvirate of life, liberty, and property, and the proscription against taking such without due process of law. The result was a profound limiting of the power of the government to enact legislation that upset an expansive view of property rights, such as, in Lochner, the right to one’s own labor in striking down social legislation regulating the working hours of bakers. The civil right of private property is found directly in the text of the Constitution, as is the prescription of due process of law. The Lochner interpretation of that right and of the concept of substantive due process might, admittedly, have been ill-conceived or too expansive, but that is not the same as being activist in abusing the language of the Constitution, as Matt well stated, to literally invent rights that aren’t found in the Constitution but in penumbras that only exist because of the fiat of judges who wanted to create certain rights that they thought should be there but weren’t. None of this is really a substantive judgment of the penumbral rights themselves. We can have a completely different debate about that. This is a discussion of the means used to achieve such ends of social legislation.

  22. john fowles
    July 6, 2005 at 3:39 pm

    Lyle, my adherence to Federalist 78 as a legitimate interpretive lens in an originalist reading of Article III and the Bill of Rights causes me to take issue with your statement as much as it causes me to refute the NYT’s agenda-driven redefinition of judicial activism.

    You wrote, Also, re: the Court as a protector of minority rights. Thats a shibboleth and canard if I ever heard one. This is a very curious statement indeed. Hamilton states in Federalist 78 that

    This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

    Madison is also instructive on this in Federalist 10:

    If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

    By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

    The Constitution provides an ingenious paradigm that gives effect to the will of the majority and also protects the rights of the minority. That is why it should be interpreted strictly and according to originalist, prudential, or even, perhaps, historical principles or modalities. Such interpretation will protect the rights of the minority as enshrined in the Constitution, as one of the main objectives of the Constitution, but no more. If new rights are desired, then they need to be added to the Constitution itself in an honest process, and not created through vague penumbra in an almost subvertive effort.

  23. lyle stamps
    July 6, 2005 at 4:01 pm

    Let’s take a concrete case in point rather than speculate.

    In Hawaii, a developer took out a construction permit for 1500 acres. The permit was only valid for the current zoning approved for the land, i.e. agricultural usage. A 1976 state law provided that only “farm dwellings” can be build as residences on agricultural land. The bureaucrats in the executive branch of the Hawaii state government interpreted “farm dwellings” in an expansive and liberal manner, i.e. they allowed any and all buildings on agricultural land, so long as some agricultural plantings were also made (i.e. token avocado trees, coffee plants, etc).

    Should the developer be permitted to proceed? Should a court stop him if asked to by private parties? The state government?

    On the one hand, the “cultural and social” forces supported developing the land.
    On the other, the state legislature had explicitly said no.
    Bureaucrats from the executive branch said yes.

    Sum: While a HI state law isnt the US Constitution, the reasoning is the same. The law says no, and no amount of socio-cultural support can change the law, including the executive branch. If they want to build the development, they should have had the state legislature pass an amendment to the bill allowing for non-agricultural development on agricultural land.

  24. lyle stamps
    July 6, 2005 at 4:03 pm

    John: Nice quotes. However, while I agree with you on the Founders intent; the Supreme Court has strayed far from the mark. In practical terms, the Court can hardly be termed a defender of minority rights, whether those suffering under slavery or about to lose their homes in New London.

  25. john fowles
    July 6, 2005 at 4:06 pm

    Lyle, it is true under principles of administrative law that administrative agencies or other bureaucrats to whom power is delegated can act in a quasi-judicial function, so long as there is an intelligible principle in the delegation of that power against which their exercise of that function can be judged by an article III court. BUT, the example is inapposite because despite any quasi-judicial function or power of executive bureaucrats, they are still not Article III judges and this discussion is focused on the judicial activism of Article III judges.

  26. john fowles
    July 6, 2005 at 4:14 pm

    Well, Lyle, I agree with you to a certain extent on your comment # 24.

    Particularly, I think the SC has been only a very selective protector of minority rights, and most recently in the last half of the XXth century, a protector of the socially preferred “minority”, whatever that happened to be at the moment. Thus, I agree with you about the egregious nature of the New London decision and wonder, why does the civil right to private property, literally enshrined in the Constitution rather than lurking in one of the penumbras, warrant less protection than the currently en vogue and invented social rights? More fundamentally, why does the civil right of private property not warrant a compelling state interest test, as with some First Amendment rights? This question, however, reaches much further back into the adjudication of the SCOTUS than just the judicial enactments of social legislation in the late XXth.

  27. lyle stamps
    July 6, 2005 at 4:21 pm

    John: The example is about whether a judge who (dis)allowed the development would(‘nt) be considered an “activist” and why.

    Greg: Good example; for the point that Liberals consistently from the 1930s onward have favored deference to the legislative branches at the expense of upholding the Constitution. The 4 Horsemen of the so-called Lochner court upheld the Constitution against a combined executive and legislative branch attack. So, yes they were activist…in upholding the constitution and declining to expand the powers of the national government.

  28. john fowles
    July 6, 2005 at 4:32 pm

    But Lyle, upholding the Constitution is not activist. Judicial activism is straying from the text of the Constitution for determinative principles in deciding cases.

  29. Michael Linton
    July 6, 2005 at 4:38 pm

    I still disagree with the attacks against the penumbra. Besides being a beautiful word and a semi-suspect legal construction, the logical arguments behind the penumbra are justifiable. It would be unnecessarily cumbersome to spell out every individual right which should be protected by the Constitution. There is nothing within the Constitution which specifically prevents discrimination on the basis of gender, yet current legal doctrine finds that it falls within the penumbra of the 14th Amendment’s proscription against racial inequality. There is also nothing in the Constitution which prohibits Congress from passing a law which requires you to marry or to marry only brown haired, brown eyed people.

    I’m not trying to argue that the penumbra rights are good or bad, but I think the logic of the penumbra is not as fallacious as the original intent followers make it out to be. It is simply the logical followthrough of many of the amendments.

  30. lyle stamps
    July 6, 2005 at 4:44 pm

    John: It was a tongue in cheek agreement, as the disclaimer point out.

    Michael: You make the mistake of confusing rights with enumerated powers. The Founders gave the government only enumerated powers to work with in order to protect rights and avoid the need to detail every possible right. Sadly, when enumerated powers were gutted in favor of broader power for the national government, the need to create penumbras became apparent in order to protect all of the rights not listed in the Bill of Rights.

    Sum: Take away expansive, non-constitutional powers and there is no need to resort to penumbras to create imaginary, or necessary, rights.

    There are five types of “activism”:

    (1) invalidated an arguably constitutional action by another branch;
    (2) failed to adhere to precedent;
    (3) legislated from the bench;
    (4) departed from accepted interpretive mythology; and/or
    (5) engaged in result-oriented judging.

    Cite: Keenan Kmiec in the California Law Review (vol. 92, page 1441 (2004)) last year called “The Origin and Current Meaning of ‘Judicial Activism'” (apparently not available on line). HT for source to Volokh Conspiracy.

  31. Greg Call
    July 6, 2005 at 4:46 pm

    John, Lyle: The constitution has a due process clause that mentions private property, but where is the right to contract to work as many hours as you’d like explicitly set out in the Constitution? Or, more recently, the right of states to be free from federal lawsuits brought by their own citizens (e.g. ADA)? Aren’t those rights only implicit, or penumbral, or something?

  32. john fowles
    July 6, 2005 at 4:59 pm

    Greg, I understand your point and it is a good one. However, I find that errors or idiosyncracies in interpretation of textual rights, which interpretative is the constitutive function of the Article III courts, is a different species than inventing rights that aren’t there and claiming that they are justified by invisible penumbras that the judges who favor such social legislation claim they can discern, however vaguely they then choose to define such rights in the language of their judicial opinions. Therefore, interpreting an already existing right to private property to mean that one has a property interest in one’s labor and an unassailable right to contract with that property, if later courts find that interpretation to be incorrect or too broad, is still legitimate (even if misguided) whereas the judicial creation of social legislation out of political and/or social ideology where the rights do not already exist in the text itself of the Constitution would be illegitimate (even if the result is favorable, as in the case of e.g. some civil rights from the Warren Court days). The real question, perhaps, is whether the favorable ends can justify the illegitimate means. Conservatives, many of whom are wholly supportive of the idea of equality and civil rights (though perhaps not necessarily affirmative action, on the grounds that it is about benefits and not true equality, or abortion, on the grounds that choice is only a smokescreen in the abortion question obscuring the real issue of whether it kills an innocent human being, to name two controversial areas of social legislation in which the federal courts have been involved) seem to answer in the negative while liberals seem to answer in the positive.

  33. Michael Linton
    July 6, 2005 at 5:00 pm

    Under the definition of activism cited, Lyle, any overturning of prior precedent as a belief that prior judicial rulings were incorrect would be considered activism. Given that judicial rulings are at some point incapable of appeal, one wrong turn would doom the judiciary to either continued wrongs in the favor of following their set course or judicial activism.

    I, for one, would prefer them to be activists in that instance.

  34. lyle stamps
    July 6, 2005 at 5:04 pm

    Michael: You make a good point. However, you miss a 3rd option: a new law is passed to overturn the judicial (wrong) decision of a legislative/regulatory matter, a new amendment is passed to overturn the constitutional matter. The only doom is when the other branches, and/or We the People, fail to do our part.

    Note: The five types I presents are those that were used in a non-partisan, respected, and frequently (of late) cited law review comment on the subject. I don’t necessarily agree with any/all of them. I presented them as a basis for discussion.

  35. Michael Linton
    July 6, 2005 at 5:06 pm


    Although I believe that Roe v. Wade was the worst case of constitutional law because it does not follow any accepted method of coming to its conclusion (primarily the result of pulling the desired answer out of one’s hat, buttocks, or ear), under your argument for extension of private property rights to include one’s labor, certain philosophers would conclude that the production of a child is a labor output (no pun intended) and thus falls within the private property exception you have concluded is a different species than the penumbra rights. Such private property exception could arguably include other “right of privacy”-type penumbra rights.

  36. john fowles
    July 6, 2005 at 5:11 pm

    ML, I’m not making any claims about the substantive validity of Lochner-era jurisprudence just in the difference in method by which such conclusions came into the body of law. My argument is that the Lochner court was interpreting an existing textual right and not inventing a new right from a penumbra. That is what I meant by a difference in species. It refers to the means by which the ends of the conservative substantive due process adjudication and the liberal penumbral rights adjudication have occurred.

    Thus, I am making no argument at all in favor of the “extension of private property rights to include one’s labor” but merely using the means by which the Lochner court came to that conclusion as part of a discussion of the question Greg posed.

  37. Eric S.
    July 6, 2005 at 6:17 pm

    An activist judge is one who uses so-called substantive due process to effectively create new rights and implement social policies not found in the text of the constitution and not approved by the people acting in their political capcity through the legislative process. It has nothing whatever to do with striking down or upholding laws. Thus, Roe v. Wade is an “activist” decision, while striking down the Alien and Sedition Acts is not.

  38. Greg Call
    July 6, 2005 at 6:30 pm

    Eric S.

    So, use of the equal protection clause to strike down laws does not amount to activism? In other words, if O’Connor’s EP rationale in her concurrence had carried the day, Lawrence would not be activism? I would think you want a broader definition.

  39. Daniel
    July 6, 2005 at 6:35 pm

    I’m coming late to this discussion, but kudos to John Fowles (I still wish you were here in Houston, John) for articulating the definition of activism which I believe most conservatives espouse when they use the term. Federalist 78 is instructive in this regard, but John has done an excellent job here, so I won’t repeat.

    It does, however, bear mentioning that Michael’s confusion comes from two inclinations: 1) failing to distinguish between the Court’s extension of rights beyond their intended ken to the degree that they interfere with other rights, and 2) a failure to understand federalism.

    Don’t believe, Michael, that the Founders did not consider the right to marry, right to have children, etc. in the context of the debates surrounding the Bill of Rights. In fact, the present Bill of Rights was the distillation of MANY suggested amendments to the Constitution. The Founders opted, rather than ensconcing all of the suggestions into Constitutional law, to distill them down to their essences and leave protection of the rest to the States and the citizens of the same, knowing that the power of a voice on the state level is infinitely greater than on the national level. At times, extending a right beyond its normal sphere can interfere with the exercise of another right, which is precisely why the interpretation of rights must be so strictly done. This is why activist judges actually restrict rights when they create a new right out of whole cloth.

    Federalism. The idea was that the Founders, by splitting the atom of sovereignty into powers to be exercised on the state level and powers to be exercised on the federal level, could be classically conservative and classically liberal at the same time by placing restrictions on the power of the federal government in addition to the implied restriction from enumerated powers. Remember that one of the primary and most stringently argued contentions against the Bill of Rights was that by setting out rights there it would be interpreted as authority to infringe on other rights not mentioned therein. Some Founders, including Hamilton, argued that a Bill of Rights was superfluous because the federal government was already limited in its powers and couldn’t do anything not specifically allowed thereunder. Unfortunately, Hamilton was prescient in this way, as it has been interpreted in precisely that way by justices of the Supreme Court who actually restrict rights by interpreting into existence out of whole cloth other rights not found in the text of the Constitution, but only in “penumbras” that defy definite boundaries. But the Founders believed that those other rights you mention were not in such danger from political forces that they would be threatened. Instead, human nature would take care of them, as well would the strength of laboratories of democracy on the local and state level.

    The Founders chose to enumerate those rights most essential, understanding that other rights would find sufficient protection in the voice of the people. In other words, by protecting crucial rights from federal encroachment, the other rights would find shelter under their broad protections. This is too cursory to fully explain things, but I will only add that it very much matters on which level regulation and restrictions are codified. I can much more easily change things on the local or state level than I can on the federal level, hence the greater need for restrictions on the federal government.

    I see, of course, the fatal flaw in federalism — that of the violation of civil rights by the state governments, but that has largely been remedied by the 14th Amendment or that was its intent. In response I would merely point out that had the Court merely enforced the 14th Amendment, the civil rights battle would never have happened. I believe that Brown v. Board was actually wrongly decided — not in outcome, but in means, and the means make all the difference. The Court should merely have overruled its prior decisions that had gutted the 14th Amendment’s intent and brought that Amendment into force again. If they had done that, we wouldn’t see this spurious use of the Brandeis brief which imports sociological data wholesale into the common law and gives judges further license to import their personal predilections into the law. But that is a conversation for another day.

  40. Seth Rogers
    July 6, 2005 at 6:47 pm

    I consider a judiciary that never challenges the House of Representatives to be contrary to a viable system of governmental checks and balances.

    I for one, couldn’t care less if a judge wants to be activist and invent law. That sort of behavior is in keeping with the spirit of the constitution as I see it.

    More to the point, I actually like the idea of some experienced opinions, with the shield of life-tenure, reigning in the foolishness of our national legislature. Democracy is only useful if tempered by non-democratic forces. Otherwise it simply amounts to mob rule.

    So the term “judicial activist” has very little weight with me since I don’t consider kicking dirt in Congress’ face to always be a bad thing.

    However, I would like to see judges who are able to guage when their judicial activism will pass muster. After all, if the Supreme Court gets too out of hand, it will simply lose credibility in the eyes of the citizenry and the President might decide to take a page out of Andrew Jackson’s book and simply ignore court rulings.

    Essentially, as long as the judges don’t undermine their own credibility, I’m perfectly OK with judicial activism (if they can get away with it).

  41. john fowles
    July 6, 2005 at 6:52 pm

    Seth, that seems a weird view, sorry to say.

  42. john fowles
    July 6, 2005 at 6:55 pm

    Daniel, good to hear from you here. I like how you point out Hamilton’s reasons for objecting to the Bill of Rights and how history has shown his view to be insightful.

    As to the 14th Amendment, I fully agree with you about how much the means matter. Conservatives largely agree with the end result of a large part of the civil rights jurisprudence, no matter what liberals like to say about conservatives. But that doesn’t mean they have to sit idly by while inappropriate means are employed to bring such results about. The damage to the integrity of the system simply cannot be overlooked when such radical departures occur.

  43. Kingsley
    July 6, 2005 at 6:56 pm

    John Fowles I kneel to you.

  44. Eric S.
    July 6, 2005 at 7:20 pm


    Point taken. I edit my post accordingly:

    An activist judge includes, without limitation, one who uses so-called substantive due process to effectively create new rights and implement social policies not found in the text of the constitution and not approved by the people acting in their political capcity through the legislative process. It has nothing whatever to do with striking down or upholding laws. Thus, Roe v. Wade is an “activist” decision, while striking down the Alien and Sedition Acts is not.

    My point is that striking down a law may be an exercise in judicial activism, or it may simply be an act of defending the Constitution from assault by an overreaching legislature, as with the Alien and Sedition Acts. There are times when the Court indeed may act as a defender of individual rights enshrined in the Constitution. Other times the Court “invents” Constitutional rights on the basis of no more than the policy preferences of a majority of the Court’s members. I will even grant that some rights may emanate from penumbras; however, the right to engage in sodomy and the right to kill an unborn child, IMHO, fall outside the ambit even of penumbral emanations.

    Incidentally, I would agree with those on the left who say that so-called conservative justices are sometimes guilty of “activism.” I disagree that Bush v. Gore was such a case. A better, more recent example, would be Scalia’s inexplicable opinion that growing a plant purely for medicinal purposes, where it is not sold for money and is never transported outside state lines, can be outlawed by Congress under the Commerce Clause. This is Scalia placing his personal animus regarding illicit drugs above his usual desire to reign in the outer limits of the Commerce Clause’s reach.

  45. Daniel
    July 6, 2005 at 7:24 pm

    I agree with your concerns about legislative tyranny. Hamilton and Adams were wont to point out that tyranny can arise from that source just as easily, or perhaps more so, than from the executive. However, your point still seems somewhat misguided, for your cure is worse than the disease. If you are truly worried, then you should endorse repeal of the Seventeenth Amendment (direct election of Senators), for that is the true source of legislative tyranny. The rise of special interest legislation can be directly traced to 1916, the year of passage of that amendment. Justice Scalia (regardless of how much you like him) pointed out recently at a meeting I attended that the Seventeenth Amendment was the true source of our problems with the current Congress confused into believing that we are a democracy (read “mob rule”) rather than a republic. Brigham Young was very explicit that our representatives are to be just that, representatives that go and make the best decision, not delegates who simply enact the will of their constituents. To put it in Hamilton’s words from the Federalist Papers, they must be willing to serve their constituents sometimes “at the peril of their displeasure.” Your view also seems out of keeping with any idea of checks and balances, for you would hang all limits on judicial authority on the slender reed of what they can get away with (sorry to end with a preposition).

    History doesn’t bear you out, Seth. In fact, I recall that the Nephites had problems with their judges because of precisely the kind of idea you are espousing — namely, that judges were banding together to overthrow the liberty of the people. The next time you are charged criminally, I wonder if you will take this uninformed position. It seems that you very keenly identify the problem (mob rule) but misdiagnose the solution. I highly recommend the Federalist Papers and second the First Presidency’s 1987 letter urging members of the Church to study them and the Constitution. The Founders grappled with the exact concern that you express here, with which I agree. Kudos for identifying it (most people, I’m afraid, don’t see the problem with the masses making decisions about HMOs, etc., as if the common citizen, even if bright and ambitious, has time to study the nuances of every political policies), but I would urge you to consider your solution.

    Finally, let me share one illustrative comment from Washington’s Farewell Address:

    “But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”


  46. Eric S.
    July 6, 2005 at 7:30 pm

    “(sorry to end with a preposition)”

    Yes, in the words of Winston Churchill: “Ending a sentence with a preposition is something up with which I will not put.”

  47. lyle
    July 6, 2005 at 9:07 pm

    Kingsley: I think you should be bowing to Seth; after all, tis he who is advocating for the “wise” rule of a few philospher-‘king’ (pun intended) judges. :)

  48. Nate W.
    July 6, 2005 at 9:24 pm


    (1) invalidated an arguably constitutional action by another branch;
    (2) failed to adhere to precedent;
    (3) legislated from the bench;
    (4) departed from accepted interpretive mythology; and/or
    (5) engaged in result-oriented judging.

    Are any of these standards quantifiable? 1 seems to include any invalidation at any time since the fact that it was passed in the first place suggests that the act was at least argued as constitutional by someone. 2 and 4 seem problematic in that just about every close case decided before the court has competing precedent on both sides. In that event, are the judges that vote on either side “activist” because they prefer one precedent over another? 3 and 5 are absolutely meaningless and perjorative. One could call decisions like Lawrence legislating from the bench or result oriented judging, but others would argue that it stems from precedent and principle and was just a result of framing the question differently than the dissenters. Even if a judge engaged in results-oriented judging, he or she would dress up the opinion in precedent, so there would be no way of telling whether the motivation of the judge’s decision was getting a result or otherwise without being able to read his or her mind. There’s absolutely no way to measure any of these behaviors, which leads me to be a bit pessimistic about a definition of judicial activism that is non-partisan and actually useful.

  49. Karen
    July 7, 2005 at 12:36 am

    John, in regards to your earlier comment, I dont “villify” your position. I think you have very well articulated your point, as always. There are parts of your argument that I find very appealing, however, I ultimately disagree with you. I think that the Constitution, without subsequent jurisprudence would be an unworkable document. It was too broad and too vague. I also think that that at least some of the “penumbra” rights are implied by the constitution, if un-enumerated. Finally, I think that we would be unwise to rigidly limit the document into one historical interpretation–I understand conservatisms attempt to hold onto the good, but fundamentally, as our society evolves, our laws have to be elastic enough to evolve with it. Without a judiciary that is free enough to interpret laws when considering very specific situations, according to the general principles of the constitution, our society wouldn’t have developed the rather complicated legal framework that allows it to function. The framers did not need to anticipate every future legal issue in order for the judiciary to have the power to meet it–expecting such foresight of them, while idealistic and fascinating, is ultimately a bit of a fantasy.

    As to Kaimi’s original point, I agree with Nate. The study seems to be mostly good for playing “political gotcha…” However, I think that it points out the weakness of using the word activism. I still believe, as I stated before, that it’s use has degenerated into a shorthand for ideas that are not well-understood by the opinion mongering culture that bandies it about so frequently. Really, what we’re talking about here, is developing a framework for how to interpret laws and constitutional principles well….not a rejection of interpretation altogether.

  50. A. Greenwood
    July 7, 2005 at 12:49 am

    “The framers did not need to anticipate every future legal issue in order for the judiciary to have the power to meet it–expecting such foresight of them, while idealistic and fascinating, is ultimately a bit of a fantasy.”

    As if judicial innovation was the only way that future legal problems could be solved.

  51. Jason
    July 7, 2005 at 1:23 am

    I admittedly didn’t read all the preceding comments, so I might sound like a child wandering into the middle of a movie, but in a spare hour spent on C-SPAN the other day, I saw Barney Frank make a great statement on judicial activism. Speaking about the recent Kelo 5-4 eminent domain decision, Frank suggested that would have been a fine time for the court to employ some judicial activism and offer property owners their due protection. However you feel about Kelo, I liked the the “frank” admission that activism usually = a bad decision–otherwise it is important historic/heroic precedent.

  52. lyle
    July 7, 2005 at 8:35 am

    Karen: Rights are not implied in the Constitution;_all_ rights are _reserved_ to We the People. Powers are ennumerated; and if left that way would obviate the need to create arcane penumbras, which are a sloppy, inexact and inadequate measure to fix the original judicial nightmare.

    Nate W: Go read the article, and take pot shots at it; not me.

    As Nate likes to point out, we like to think we are principled, but it is all mostly post hoc rationalization. If so, maybe you are right. I disagree.

    Jason: So, you are proposing the “Frank” Constitutional theory? I.e. if you don’t like the result, overturn it and its okay as long as the biggest conservatives and liberals both condemn the result?

    X: “The framers did not need to anticipate every future legal issue…”
    Lyle: As Adam pointed out implicitly…you are right. That is why they provided an amendment process.

  53. Nate W.
    July 7, 2005 at 9:29 am

    Lyle: Sorry — I read your post as advocating these definitions, or at least presenting them “as a basis for discussion.” At any rate, the article simply points out that someone who talks about judicial activism could mean any one of those definitions. It readily concedes the fact that there is no way to measure any of these behaviors, which leads me to conclude that the term will only have a perjorative meaning. But maybe this is just because I read too much Duncan Kennedy. Could be . . . .

  54. TMD
    July 7, 2005 at 9:57 am

    As a budding political scientist, I was surprised at how unsophisticated the analysis of this particular set of data was. Rarely, indeed, does data speak for itself, and simple, uncontrolled percentages can be among the most misleading types of statistics. Although I see the reasoning for selecting the sample–1994 was the first term of the court with the current composition–this particular data set includes significant biases which I think interfere with our ability to derive meaningful conclusions about “activism” as defined by the authors.

    If we assume–as many if not most judicial politics scholars do–that appellate judges largely rule based on personal preferences (so long as they can at least half-way fit said preference into a legal argument), then the relationship between those preferences and the preferences enshrined in the law should have a substantial effect on whether or not a justice votes to strike down a law, regardless of their posture on activism. By 1994, laws created by a democratic legislature and accepted by a democratic president were becoming perhaps the principal subjects considered by the court (or at least the principal acts which might be considered for striking). Indeed, this ‘Clinton effect’ probably held into 2002 or 2003 (despite a right-leaning congress after ’94, there was still a democratic president whose vetoes were rarely if ever overturned). So, for most of the dataset, a particular set of preferences (those of the left, or at least the center-left) was much more likely to be encountered in the laws the court was considering, and right-leaning preferences were much less likely to be encountered. We should expect, certis paribus, that left-leaning judges should be less inclined to strike the laws of a left-leaning president, but right-leaning judges more apt to do so. The contrary also holds.

    The point? Unless we control for the selection effects related to preferences of the judges relative to the preferences reflected in the acts, comparing relative levels of “activism” is not particularly interesting. It is mere political rhetoric.

    Of course, should we expect anything more that that from the law professoriate with it’s non-peer reviewed ways? I doubt it…

  55. Kaimi
    July 7, 2005 at 10:30 am


    It’s a newspaper op-ed, not a published article.

    Then again, perhaps poli-sci types send their newspaper op-eds around for peer review and double-blind screening. They’re the real academics, after all . . .

  56. Eric S.
    July 7, 2005 at 10:41 am


    The Constitution has provisions to deal with the “evolving society” problem–it can be amended through the political process. That judges have seen fit to decide on their own when society has evolved to the point where the Constitution needs to be amended by judicial fiat rather than by the voice of the people is, I think, what many would refer to as judicial activism. The Lawrence decision, IMO, is an example. If society has “evolved” to the point where we want to recognize a new right that is not found in the text, history, or structure of the Constitution, then the people can amend the document to reflect the change in society. It is not the job of 5 men and women in black robes to accomplish this by judicial decree.

  57. Daniel
    July 7, 2005 at 11:07 am

    To follow up on Eric S.’s most recent post, it is also important to note that the reason that selection of judges, particularly justices to the Supreme Court, has been politicized is because advocacy groups, including advocates of homosexual marriage, partial birth abortion, etc., recognize that when they cannot win in the court of public opinion and can find no support for their claim of a supposed “right” in the text of the Constitution, they can turn to the judiciary to cram their pet issue down the throats of the rest of America. Roe v. Wade is a classic example of this, as Justice Ginsberg has acknowledged. This is the real source of the contention around judges. These judges, arrogating to themselves the role of philosopher kings, have assumed that they know better, and with a finger to the wind, broadly use international law and their perception of what the pulse of the nation is to decide issues of great importance to the average American. I shudder to think that 9 octegenarians (Ok, not all of them are that old) are the most capable of discerning popular sentiment.

    The Federalist Papers point out that the judiciary was expressly designed to be immune from popular opinion, that they might exercise their countermajoritarian function and protect the rights of the minority from the dominant faction. When they are no longer able to perform that function because of politicization, we have greatly weakend one of the crucial checks and balances of our interdependent system and put our finger on the scale, so to speak.

  58. Kaimi
    July 7, 2005 at 11:15 am


    Why the assumption that judges are uniquely vulnerable to advocacy-group pressure or are “arrogating to themselves the role of philosopher kings”? I know that you disagree with the decisions, but isn’t it possible that they were arrived at by honest judges honestly doing their job as they best understand it?

    One important idea in legislative interpretation is Hart and Sacks’ idea that laws are created by “reasonable persons pursuing reasonable purposes reasonably.”

    Why can’t we believe the same about judges?

  59. Greg Call
    July 7, 2005 at 12:49 pm

    TMD: “If we assume–as many if not most judicial politics scholars do–that appellate judges largely rule based on personal preferences (so long as they can at least half-way fit said preference into a legal argument)..”

    Now I’m sympathetic to legal realism, but this kind of claim is baloney. I worked on an appellate court for two years, and I would say 90 percent of the cases we had did not leave any room for anyone’s “personal preferences” — there was either clearly reversible error in the lower courts or there wasn’t. Most of the cases had not much of a personal or political aspect to get excited about — they were administrative cases or intergovernmental squabbles or drug convictions or dry statutory interpretation that only a lawyer could care about. Granted, there was the occasional case where a judge’s feelings about race, or sex discrimination, or capital punishment, might make a difference (although I can say from observation that even in these cases, many judges are very careful about trying to ensure that their decision is not being affected by their prejudices). And those cases get the most press. But it is just not fair to say that “appellate judges largely rule based on personal preferences (so long as they can at least half-way fit said preference into a legal argument).” Now, if by “personal preferences” you meant “judicial philosophy,” the claim makes more sense. But then, how could that not be true?

  60. Daniel
    July 7, 2005 at 2:30 pm

    my point was that judges are more likely to enact policies that have failed to find acceptance through the constitutional channels (i.e., legislative changes, referendums, constitutional amendment). Because courts have taken unto themselves increasingly greater power through application of such things as substantive due process and the like, advocacy groups rightly recognize that their only hope after failing to convince their fellow citizens lies in influencing judges. They may also adopt this approach because it is much faster than waiting for hearts and minds to change, though I would argue its effects either are not as durable or occasion more long-term resistance, a la Roe v. Wade. And judges are more likely to be influenced by such campaigns. I will try to explain my nascent sense of this below, painting with very broad brush strokes.

    I believe that the legal profession in general is much more vulnerable to the ideas from academia, etc. Historically, at the time of the Founders this was good, as it contributed to more enlightened statesmanship. Many of those good effects remain, but at the same time, there are significant disadvantages to this problem now, given that the academy has largely become a bastion of atheistic or agnostic, amoral or immoral thought that has been influenced greatly by the ’60s, post-modernism, etc.. There are too many studies showing this influence in academia to even attempt to link to them. While young conservatives go into business, young liberals migrate to journalism and to academia, simply because of the nature of the beast (for example, young conservatives are more likely to have a family and therefore less likely to have the freedom to take a low-paying job in academia or journalism). As a result, the academy has become corrupted (and I recognize that there are well-meaning liberals in academia, but by and large, there is a significant hostility towards traditional morality there). This has only been heightened by a growing separation of the practice of law in the upper echelons from everyday life. Most big firm lawyers, from which the majority of the judiciary is now drawn, have very little practical experience with the everyday struggles of common people. They are products of a common-law system that originally trained its lawyers by mentor programs, but has now adopted the ill-fitting approach of the university more appropriate for civil law systems and which ignores that the brilliance of the common law was its being informed by practical experience. These and other factors, combined with a growing elitism among the nation’s lawyers from higher and more exclusive standards to enter law school, contribute to a general opinion among lawyers in general that they are the best and brightest. It isn’t too many steps to the “philosopher king” attitude. Accordingly, the courts, when presented with a problem, are much more likely to try and come up with a solution than they are to defer to the legislature. The whole debate reminds me of Jefferson’s statement that if you state a case to a plowman and a professor, the plowman will 9 of 10 times give you the correct answer because he is not bound down by artificial rules. In short, judges might be reasonable people and might even be trying to do good, but they simply are not equipped to answer some questions, and thence venture well-meaningly but incompetently into areas where they might have restrained themselves.

    One of my law professors referred to this in another context as the “clean hands, empty head” defense. How can those judges who have no understanding of political history (or limited understanding) provide answers to questions that should be answered in the court of public opinion? When presented with a question they simply feel compelled to give an answer — rather than deferring as they often should.

    Greg, I agree with your assessment, but I think it is our problem with the 10% that we are talking about here. Most law remains practical and good, but in those areas most highly-charged with political meaning that have the most drastic effects. In short, judges and lawyers have stepped in and substituted for good, old-fashioned, grass-roots convince-your-neighbor.

    This attempt to explain all of the causes of this change is embryonic, but I would be curious to hear everyone else’s sense as to why this obvious (to me) phenomenon occurs.

    Also, for purposes of this discussion, please note that I am not advocating some kind of yeoman citizenry that is all virtuous or some kind of always corrupt judiciary. My major point, as has been argued by such luminaries before me as John Yoo, Todd Zywicki, and even Justice Scalia, is that when the Seventeenth Amendment was passed, the critical and crucial system of checks and balances established in the Constitution was thrown off, tearing down the first line of defense and putting a disproportionate weight on the Court to correct abuses. Originally, Senators would act as the first line of defense to popular passions that might oppress the minority. When this wall was torn down, the judiciary was given even greater power and responsibility, a responsibility which it is often ill-equipped to handle, especially when discussing contentious issues such as civil rights, affirmative action, abortion, gay marriage, etc.

  61. TMD
    July 7, 2005 at 5:57 pm

    Greg—I’m not really familiar with a sophisticated discussion of judicial realism. My approach is, instead, based on general expert and political decision-making principles. For me the key issue is, to what degree are preferences over policy written into judicial philosophies, either overtly or by implication? It would be my argument that most judges ‘judicial philosophies’ involve both preferences about the nature of the law (etc.) and also over policy. These combinations of legal and policy preferences may sometimes be overt, but not always—policy may be densely intertwined with more strictly legalistic preferences, and sometimes, policy preferences may hide behind legal ones. Some policy preferences may be more commonly described as norms, principles, and ‘rules.’ Regardless, these two sets of considerations (and perhaps some others, for instance, the need to form coalitions in certain circumstances) combine to form the judge’s ideal point for the question before them, reflected in their ruling (or vote). In those cases lacking a policy aspect, those preferences play no role in forming the ideal point. Hence, your experience that in most cases, policy preferences play seem to play no role. However, by very definition, when the constitutionality of a law is being considered—the point of this discussion—policy is involved and therefore policy preferences should be active in the formation of the ideal point.

    Your observation that “many judges are very careful about trying to ensure that their decision is not being affected by their prejudices” and the apparent significance of judicial philosophy in discussions of judges and courts is, I think, structurally induced. Because in the US federal judiciary the principal agent-problem is so grave that the principals are almost completely unable to constrain their agents (i.e., judges), in order for the agents to remain legitimate and therefore effective, they must at least pretend that they are constrained by something—their judicial philosophies, the law, precedent, something. After all, as the earlier reference to Andrew Jackson indicated, courts are only as powerful as they are perceived to be legitimate. Regardless of who is talking, discussions of judicial philosophy often seem to me to be part of euphemization of politics, a variant of what George Orwell was talking about in his famous essay on writing—that is, we know what we want, but often times we’re too afraid to say it straight out because we know we couldn’t get enough support for it if we did.

    This all makes me see a very cynical and pessimistic person, I’m sure. But, really, I’m not—I just don’t have unreasonable expectations about how politicians (and certainly judges fall into this category) will act.

    PS, to Kaimi: Regarding my dig at the legal professoriate, of course op-eds aren’t peer-reviewed. But the ethic of peer review meaningfully disciplines at least the claims political scientists make about evidence, and the way they use it. If a respected political scientist had so casually made such public claims on the basis of this evidence, he or she would surely lose face (with career implications), either because they were clue-less about methods or because they were disingenuous in their usage of them. I do not see the same responses at work among legal faculties, and I think that in good part this is due to an absence of peer-review processes in their publishing outlets.

  62. Nate Oman
    July 7, 2005 at 7:19 pm

    TMD: Two points. First, with regard to judicial philosophies, I wonder to what extent your assessment is based on the caricutured versions of jurisprudence one sees in the popular press and to what extent it rests on reading primary sources, ie law review articles and judicial opinions. Anyone who thinks that judicial philosophy is nothing more than a sham for political or policy preferences has never worked with a real live judge before. On numerous occasions I saw my judge rule in ways that were deeply at odds with his policy preferences because the law required the particular outcome. I worked on cases with truely stomach turning outcomes where the result was dictated by the application of clear law.

    Furthermore, it is not true that all constitutional issues are so unsettled as to amount to little more than opprotunity for policy prescriptions. Substantial portions of constitutional law are fairly well settled, and applied in reasonably consistent ways by courts every day. I have read a fairly big chunk of the political science literature on judicial decision making. Some of it is quite good and it offers some interesting insights. However, it is ultimately an unsuccessful account of judicial decision making precisely because the models only work if the issues in a give case are simplified to such an extent that the theory ends up obscuring as much as it reveals. Furthermore, even in terms of predictive power, the sine qua non of the social scientists bringing light and truth to the benighted masses of the law, the political science literature is a bit of a flop. Consider, for example Lee Epstein’s assertion that the statistical analysis of voting patterns ought to replace the exegesis of judicial opinions as a means of discovering the law. Aside from resting on a deeply flawed philosophy of law, Epstein simply cannot deliver the goods. Social science has thus far been utterly unable to produce theories with enough predictive power to answer the sort of basic questions faced by lawyers every day. Any good lawyer knows that that the identity and opinions of the judge matter, but only an idealogue unburdened by the actual requirement of advising clients and advocating their causes in the courts thinks that the process can be reduced to such things.

    My second point has to do with the woeful state of legal academia and peer review. I fully agree that law professors frequently make emperical claims that cannot be supported by the data to which they cite. This, however, has to do less with the fact that law professors publish in non-peer reviewed venues than with the fact that law professors are not trained as social scientists but as lawyers. It is rather like ascribing the rather simplistically asinine claims that social scientists make from time to time about jurisprudence to the fact that they do not publish in law reviews. A much better explanation would be the fact that social scientists do not recieve any formal legal training.

    As it happens, I am not a fan of the law review system. I think that while it has some great strengths, they are probably outweighed by its weaknesses. However, it is worth pointing out that law professors publish in peer reviewed fora quite regularlly. There are peer reviewed legal journals, and books published by peer reviewed academic presses are increasingly becoming the norm. Furthermore, there are certain fields — such as philosophy of law and contract law — that are fairly international. In the area of philosophy of contract law, which I know somewhat, I have a difficult time seeing a tremendous difference in the quality of what is published in the Oxford Journal of Legal Studies and the Virginia Law Review.

  63. john fowles
    July 8, 2005 at 12:30 am

    In the area of philosophy of contract law, which I know somewhat, I have a difficult time seeing a tremendous difference in the quality of what is published in the Oxford Journal of Legal Studies and the Virginia Law Review.

    This example makes it sound like you do after all trust the law review system, unless I am reading you wrong. So how do the weaknesses probably outweigh the strengths? Is it just the sheer volume of law reviews out there all seeking to publish . . . something?

  64. Kingsley
    July 8, 2005 at 12:46 am

    Lyle: I bow to the lawyer John Fowles for his impassioned, lengthy, logical arguments against bowing to lawyers (even ones in black robes). I am laughing, however, at your joke, which was clever and to the point.

  65. Seth Rogers
    July 8, 2005 at 10:03 am

    Re: #45 and 47

    I don’t think you got my meaning. I am not advocating the “wise rule of philosopher kings.” The Supreme Court Justices are usually not wise. They certainly are not kings.

    People tend to overrate the power of the Supreme Court. The Court pronounces a woman’s right to an abortion in Roe v. Wade and the conservatives are up in arms about how the Court is “legislating.” To hear them tell it, you’d think Justices O’Connor and Kennedy were single-handedly forcing America to embrace abortion.


    The Supreme Court doesn’t have an army, they don’t have a police force. Neither do they control the budget. The only source of Supreme Court power is their legitimacy in the eyes of the American public.

    I mentioned Andrew Jackson for a reason. The Supreme Court ruled against the President and he basically said: “Oh yeah? You and what army?” Then he ignored the Court.

    The Supreme Court leads a rather fragile existence. The moment Americans in general stop believing in it, it will become irrelevant. Once the President and Congress sense that ordinary Americans no longer believe in the Court, they will feel free to follow Andrew Jackson’s lead and ignore it.

    If you look at the history of the Supreme Court, they were usually the last institution to embrace any new trend in American politics and society. The Court has always been an incredibly slow-moving body.

    This is because they realize their power would be instantly destroyed if they crossed the line.

    The Supreme Court ruled on Roe v. Wade, because a large portion of America and its leadership WANTED them to rule that way. If they didn’t think they could get away with it, they wouldn’t have ruled on it.

    Don’t shoot the messenger. That’s really all the Supreme Court is.

    You want to blame Roe v. Wade on someone? Blame the American people.

    Now, answering other points … I’ve already read the Federalist papers (admittedly, it was some time ago). I think they support my view (though I doubt the author would have). The brute force of the Executive Branch, the mob rule of the House, the aristocratic elitism of the Court … All were meant to counterbalance each other.

    Daniel, don’t invoke the Book of Mormon here. It supports my view just as easily as yours. You can point to your corrupt judges in Helaman. I can point to Alma in Mosiah. You can talk about how these “elites” twisted the system for their own gain. I can point out that wise judges were directly advocated by King Benjamin. This kind of back and forth will lead us absolutely nowhere.

    The Book of Mormon offers little direct guidance on the issue of the Supreme Court.

    Neither does bringing up the Lord’s endorsement of the Founding Fathers help much. They may have been inspired, but they certainly weren’t infallible. Furthermore, they were a highly contentious bunch. Their views were widely diverse. Some even advocated a more extreme form of aristocracy than I am being accused of (though if you read my posts carefully, you’ll see otherwise).

    If you want to give the “Founding Fathers” semi-prophetic status, that leads us to ask: which one? You can find an opinion at the Constitutional Convention to match anybody’s taste.

    Re: #63

    The problem is that law reviews don’t have a system of peer review. Instead, they’re student-run.

  66. TMD
    July 8, 2005 at 10:31 am


    Courtesy seems to compel a response to such a lengthy and thought out response. You make a number of good points, but, from where I sit, they all address assumptions (which, like models themselves, are neither true nor false but merely more and less useful) or a side comment about the nature of the judiciary and the legal professoriate. My main original point was that in looking only at percentages and creating them based on a potentially biased sample, a law professor trying to do social science was making unjustified claims per the data, or at least ignoring the elephant in the room–that policy preferences, either written into judicial philosophies or existing of themselves may play a significant role in striking down laws. (My experience with judicial philosophy is clearly more limited than yours–it comes from an undergraduate con law class taught by a very good professor who was both lawyer and PS PhD–but is more than that experienced in the general public. As to the relationship between policy preference and judicial philosophy, the grounding for my assumption is that most people have policy preferences before they have judicial philosophies (that is, over the course of thier lives), and that the former may bias acceptance of the latter.) As a social scientist, not looking at that elephant, or considering the role of that selection bias, poisons any conclusions drawn (whether they are actually there or not is, of course, an empirical question). Now, this is indeed probably because the law professor was not trained as a social scientist (just as legal advice from a social scientist would probably not be as good as that from a law professor), but the outcome is the same. The dig about the culture of the legalists was based on the fact that no where have I heard this line of critique, that it is not the first time that a law professor has sought to create a big stir about something based on a bad analysis of data (McConnell’s miranda results were used as an example of what not to do in my intro-to-research design class in graduate school), and yet certainly, if a political scientist tried to give legal advice (say Epstein), people would probably critique pretty heavily, and maybe even laugh. Cheers!

  67. Daniel
    July 8, 2005 at 11:34 am

    My invocation of the Book of Mormon was only to illustrate something into which I’ve put quite a bit of thought of late — namely, the check that should be placed on judges at the present. Judges need this check because the balance you refer to (“The brute force of the Executive Branch, the mob rule of the House, the aristocratic elitism of the Court … All were meant to counterbalance each other.) has been disturbed. My invocation of the Book of Mormon was not intended as an attempt to take the moral high ground, but rather merely as an attempt to point out historical instances where your advice that judges do make all the law they can get away with has not worked. Simply because Alma was a righteous judge doesn’t mean that later men in the office without his internal control or the outward “auxiliary precautions” won’t use their power wrongly. Judges with unlimited power other than where they are stopped is a terribly bad idea, especially given the lack of restraint from stare decisis. The vast majority of cases are not appealed and would not spark the widespread resistance you implicitly refer to, leaving many individual cases of immense injustice. I’d rather not live in the kind of system it sounds like you are endorsing.

    Further, your invocation of Jackson is not apropos. You assume that he did so blithely, or even correctly, not understanding that defiance of the court brings on a constitutional crisis and throws off the balance that the Founders established. The Founders built other safeguards into the system that have been subverted (direct election of Senators), and this disturbance of the balance leads to disproportionate pressure on the Court to resolve disputes the Founders had no intention they resolve and to ideas like allowing the Court to just spend all of the political capital it possibly can until someone yelps.

    Further, your reading of Roe v. Wade’s historical context is just plain wrong. Justice Ginsberg herself has argued as much. You said, “The Supreme Court ruled on Roe v. Wade, because a large portion of America and its leadership WANTED them to rule that way.” Ginsberg argues that the backlash to Roe v. Wade occurred precisely because the majority of America DID NOT want them to rule that way. She posits that if the Court had left things alone and let the legislative process work things over, with its necessary catharsis for those whose views are ultimately not accepted, we would not see the backlash, including abortion clinic bombings, to the extent we see them now.

    Those violent actions are a result of people simply ignoring the Court’s ruling. You cannot blame the American people for a decision that was imposed on them by nine people without reference to any guiding principle. It is exactly because the Court was advocating your no-holds-barred approach that we ended up with that ruling and the present climate of recrimination surrounding abortion; in other words, without going through the process of debate and acceptance inherent in the legislative process, citizens revolt at having an idea they haven’t come to terms with shoved down their throats by philosopher-kings.

    Finally, Seth, no one has argued that the Founders were infallible. I think that you are setting up a straw man here. The system they established, however, was brought into existence under guidance from God. I’m not sure if you are attributing this idea of infallibility to me or not, since I don’t see where anything I’ve said might lead you to that idea.

    The Federalist Papers most assuredly disagree with you. I can’t see how you can use them for support without taking passages out of context. I could be wrong, so please explain. Also, please note that my invitation to have you read them was not meant to sound condescending or flippant, so I apologize if it did. On rereading I see that it could have been misinterpreted that way. My point was that for someone who is obviously thinking about these issues, the Federalist Papers might provide a guide to good policy. As a result of this post, I’ve renewed my desire to get back into them, as it’s been over a year since I’ve studied them.

    Your post is internally inconsistent, in that you argue that the Court should do whatever it can get away with, and then in the next breath argue that it is the messenger of the American people. Maybe I’m misreading you here, so please explain.

  68. Nate Oman
    July 8, 2005 at 1:01 pm

    TMD: Like I said, I think that your criticism of law professor social science are justified. I simply object to the claims made by Lee Epstein and others that social scientific analysis of judicial behavior is an adequate substitute for jurisprudence or even that it provides a good account of judicial decision making. Phenomenalogically it certainly doesn’t accord with the way in which judges either understand their activity or the processes by which they carry it out. I agree with you that simplifications are necessary and fequently useful, but it is important to remember that they also distort and conceal. Furthermore, social scientists are also sometimes simply too ignorant of the law to know what are the interesting or important questions, just as law professors are generally not equipped to answer the emperical questions on which many of their argument’s turn. To my mind, this is a major problem in the institutional organization of knowledge and research. In part it can be bridged by JD/Ph.Ds. I think that another, very promising approach is for social scientists and law professors to joint publish, with the law professors providing institutional detail and some sense of which questions are potentially interesting, and the social scientists providing the technocratic expertise in massaging the data. The problem to this sort of collaboration, however, is that it imposes costs on both the social scientists and the law professors without any corresponding professional pay off. Indeed, for some tenure committees, joint authorship and collaborative studies are probably a mark against a candidate. Hence, you have a situation in which the institutional incentives are badly aligned with the underlying intellectual needs.

  69. Seth Rogers
    July 8, 2005 at 11:28 pm

    Thanks for clearing the air a bit Daniel. I think I see where you’re coming from now.

    I’ll certainly be the first to admit that my off-the-cuff remarks were still somewhat rough-hewn and probably need quite a bit more thought before they’d pass academic muster.

    Thinking more about it, I believe part of the source of my views might be a bit of fatalistic thinking about the judiciary. As far as I can tell, judicial activism is hard to avoid, no matter where a judge is situated on the political spectrum. For example, I’ve seen Justice Rehnquist invent government deference out of thin air before. Opinions from other judges have similarly perplexed me.

    Perhaps my view was simply:

    “We will never be rid of judicial activism. But we needn’t worry, because the Court has a limited amount of political capital which ought to keep them in check.”

    The solution then is to simply seek out judges who are politically shrewd enough to know which way the political winds are blowing.

    But admittedly, this is quite a cynical view of American government. I’ll have to mull it over a bit more.

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