What Is Judicial Activism, Anyway?

Yesterday I argued that an assessment of an appellate court's activism is significantly more complex than setting an arbitrary standard, even if it's one that's relatively easy to measure, determining the total number of times the court's decisions implicate that standard, and presenting the sum as a score of its activism. Specifically, I rejected as a measure of activism a simple sum of the number of times that the U.S. Supreme Court overturns precedents and invalidates federal laws.

In his resort to that standard, I'm not certain that Jonathan Adler was endorsing it, so much as making an argument of convenience in defense of the Roberts Court. I understand the temptation to try to create an objective measure of a court's activism. But as I suggested yesterday, a court can be extremely activist while avoiding issuing decisions that are counted as activist, or through a small number of decisions that have a profound impact on society.

Today, Adler's co-blogger, David Bernstein, inadverently supports my argument:

Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the two cases (and I heard Jeff Rosen cleverly drawing them on the Diane Rehm Show yesterday), but a presence or lack of “activism” isn’t one of them.

If we apply the definition previously shared by Adler, the invalidation of most of Arizona's immigration law cannot be regarded as activist as it neither reverses precedent nor invalidates a federal law. Conversely, applying that same definition, upholding the entire Arizona immigration law would have upset long-standing precedents on federal preemption and would thus have been an activist decision - the opposite of what Bernstein implies. It's possible that Bernstein would argue that the decision was activist no matter which side prevailed, but that would go beyond highlighting the difficulty in defining activism - it would deprive the concept of any meaning.

Bernstein basically admits that he is comparing apples to oranges. Certainly, just as apples and oranges are both fruit, two very different decisions¹ can both be activist. But in order to support that contention the proponent of the comparison should provide structure to his argument in the form of a definition of judicial activism. What distinctions between cases does Bernstein believe would help us differentiate activist from non-activist opinions? If no distinction is relevant, then isn't every opinion activist?

Bernstein continues with an argument that reinforces a point I made yesterday - that it's possible for a Court to issue a profoundly activist decision that reinterprets, narrows, or finds an exception to prior case law such that it is not technically reversing a precedent when issuing its decision:

The closest I’ve heard to a plausible distinction is that the Arizona cases weren’t “activist” because they followed precedent, but invalidating the individual mandate would be because that would involve rejecting precedent. But I’m quite confident that if the Court does invalidate the individual mandate, the majority will express agreement with the consensus of lower courts that the mandate is itself unprecedented, which naturally means that there is no prior case directly on point.

That is, after all, what the proponents of the "action" vs. "inaction" distinction have been aiming for since they invented the distinction less than two years ago, after the legislation had passed. By Adler's definition the reversal would remain activist, as it would undermine federal legislation, but Bernstein's observation highlights how reversal of precedent is meaningless as a test - how a court can be exceptionally activist yet technically uphold precedent?

The closest thing that Bernstein offers to a definition of activism is,

Either one believes in a “restrained” judiciary, or one does not.

That is, he offers a truism that does nothing to help clarify what judicial conduct is or is not activist.² Further, if the measure of activism is whether or not the court shows "restraint", wouldn't any party who calls upon the Supreme Court reverse part or all of a precedent, or overturn part or all of a federal statute, be demanding judicial activism? If so, once again the concept loses any significance.

Bernstein proceeds by proclaiming that people on the "liberal-left" don't care about judicial restraint, something belied by decades of liberal hand wringing over the manner in which the Supreme Court has chipped away at Roe v. Wade.

It’s really not much of a surprise that the vast majority of those on the liberal-left who support the constitutionality of the mandate don’t believe in a restrained judiciary. They rather simply don’t think that federalism concerns are constitutionally significant (or, if they are, that the importance of health care reform far outweighs their significance).

The latter part of Bernstein's missive about liberals is more interesting. Bernstein clarifies that it's not that the "liberal-left" doesn't care about judicial restraint, but that the "liberal-left" is not concerned about the brand of libertarianism that the Court endorsed in Bernstein's favorite case, Lochner vs. New York, but which was repudiated by the Supreme Court in the New Deal era in favor of an expansive interpretation of the Commerce Clause.

Leaving aside for the moment the fact that the Arizona immigration case deals with federal preemption, the Supremacy clause as opposed to the Commerce Clause, it is fair to say that the "liberal-left", and likely pretty much everybody who is not on the libertarian right, shows a lack of concern for federalism that Bernstein might find troubling. But if Bernstein means to suggest a measure of "judicial activism" by which "judicial restraint" can be measured by "federalism concerns", and not by how the court approaches legislation, precedent, or the text of the constitution, he's effectively defining as "activist" any decision that is not consistent with a specific aspect of his personal political beliefs. But if we allow an individual's personal political belief to be the measure of judicial activism, once again the concept loses any significance.

On other hand, they think that protecting the rights of illegal immigrants from overzealous states (or ensuring the right to abortion, or the right of gays to marry, or the protection of “War on Terror” prisoners) is exactly the sorts of things that the Court should be “activist” about.

Wow, those crazies on the liberal-left, worrying about such trivialities as "overzealous" state action that threatens the rights of the weak and powerless, government adherence to the Fifth and Sixth Amendments, and keeping the government's prying eyes out of the bedrooms and family planning decisions of consenting adults. Why, oh why, can't they focus upon more important things, like getting the Supreme Court to disregard the Supremacy Clause and reverse the New Deal?

It seems a bit odd that a champion of Lochner is concerned about the extent to which others support judicial activism. It is not unreasonable to argue that the Constitution does not expressly include a right to privacy, such that it's activist to call upon the Supreme Court to define and expand a constitutionally protected right to privacy, but by the same token there is nothing in the language of the constitution that supports or privileges the views of the Lochner court. Lochner turned on the right and liberty of the individual to contract,

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

but you won't actually find that right enumerated in the Constitution, nor will you find textual support for the Lochner court's position that a state has no right to regulate the length of the workweek.³ Neither the language of the 14th Amendment in general nor of its Due Process clause support the type of substantive analysis applied in Lochner - and in other contexts the conservative model is to dismiss the notion that "substantive due process" is a proper matter for judicial review. Perhaps that - the embrace of substantive due process as a proper matter for federal judicial review - is a point where Professor Bernstein and the "liberal-left" can join hands and push for... I'm not sure if Bernstein would have us call it activism, but it certainly wouldn't be restraint. Perhaps it's simply what, at some level, we all know: Sometimes judicial activism is a good thing, even if we loudly and vehemently disagree over a particular activist decision. As an illustration, I'll again point to the once controversial and now broadly accepted holding of Brown v. Board of Education. On the other hand, some activist cases such as the atrocious Slaughterhouse Cases will never look good.

Turning back to the issue at hand, although it's easy for the Supreme Court to reinterpret or narrow precedents to render them all-but-meaningless without technically reversing them, they do not enjoy the same luxury in relation to statutes. Perhaps that's where Bernstein's notion of restraint can be applied as a measure of activism. Almost two centuries ago, in writing the decision in McCullough v. Maryland, Justice Marshall observed,

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

Given the admission of most advocates of the "action/inaction" distinction that, in the words of Professor Bernstein,

Congress can certainly pass a new law that does everything the ACA does, but this time do it as a "tax".

How would the reversal of the individual mandate on the grounds of semantics - of Congress passing a law that "is not prohibited" and "is really calculated to effect any of the objects intrusted to the Government" - not constitute an extraordinary repudiation of the judicial restraint and modesty Justice Marshall described? It's one thing to examine a law in light of the powers granted by the Constitution and hold that the legislature overstepped its bounds, as the Supreme Court did with Arizona's immigration law. It's quite another to reverse a law that the Court accepts as falling within the enumerated powers of the legislature on the premise that, although substantively proper and passed for the advancement of legitimate and compelling government interests, there are problems with its form.
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1. As previously noted, Bernstein admits, "there are all sorts of distinctions one can draw between the two cases".

2. The judiciary should be restrained by what? Deference to precedent? Deference to legisatures, state and federal? Deference to the Constitution - and, if so, pursuant to what model of interpretation? How extreme should the deference be? If deferance to a state legislature requires modifying or reversing precedent, should the court defer to the legislature or to precedent? If a court offers a disingenuous declaration that its decision is unprecedented, is it no longer required to show restraint to a legislature or to precedent?

3. My understanding is that Professor Bernstein tries to have it both ways - arguing that Lochner represents good law and policy, but declining to opine on whether the Supreme Court was correct in rejecting a maximum workweek. That seems tantamount to arguing that the Supreme Court was correct to identify a right to privacy in Roe v. Wade, but that the rest of the decision is irrelevant to your endorsement of constitutionally protected privacy rights - it appears to be an attempt to embrace the concept while ducking the controversy. In supporting a legal principle it's not unreasonable to argue that slippery slope arguments - what the Court might do if it takes the principle to its extreme - are overstated, but its something else entirely to ignore what the court has already done. And if the argument is, "I ignore both the reasoning and outcome of Lochner while endorsing the principle of its holding," your attempt to "rehabilitate" the case becomes one of politics, not of law.