Judicial Activism Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Judicial activism is too often simply a criticism made against a judge who exercises the power of judicial review to strike down a democratically enacted law on constitutional grounds. If judicial activism is only a way to disagree with a judge’s decision, it has little jurisprudential value. Judicial activism means more than just simply invalidating a democratically enacted law, just as judicial restraint means more than simply upholding one. The term implicates a court’s role in a constitutional system.

The Countermajoritarian Judiciary

In the United States, judicial activism has been associated with liberal judges since Earl Warren’s tenure as chief justice of the U. S. Supreme Court, during which the court struck down legislation by interpreting the Constitution to expand the scope of individual rights in such areas as privacy and criminal procedure. However, as the political science literature persuasively shows, conservative justices also seek to strike down legislation as unconstitutional. According to Thomas Keck, the court under Chief Justice William Rehnquist was the “most activist in American history” (2004, 203). Political scientists such as Jeffrey Segal and Harold Spaeth (2002) have shown that justices often invalidate laws and policies on the basis of ideological preference.

So, whereas a liberal judge may be more likely to invalidate laws that infringe privacy or expand executive power, the conservative counterpart may be more likely to do so when laws infringe property or benefit racial minorities. Judges invariably invalidate legislation, acting in a counter majoritarian fashion. That is the role of a judge in a constitutional system. Though the empirical literature is instructive in highlighting the way in which all justices—conservative and liberal—seek to strike down laws, it does not capture the normative sting of accusing a judge of judicial activism. Equating activism simply with the frequency or likelihood with which a court strikes down laws is insufficient. After all, there is a connotation of illegitimacy about judicial activism.

Within political science, this connotation of illegitimacy stems in part from what Alexander Bickel famously called the “counter majoritarian problem.” Bickel argued that judges should restrain their desires to bring about policy outcomes because their insulation from political accountability subverted the democratic process. While some authors have tried to reverse the stigma on judicial activism (notably Terri Peretti’s book In Defense of a Political Court), the stigma remains politically important. A normative response to Bickel’s thesis is possible, however, that explains the negative connotation of judicial activism while showing the essentially democratic function of judicial review. This response draws on Bruce Ackerman’s distinction between higher and lower lawmaking. This distinction defines judicial activism as the perception that a court has engaged in higher lawmaking. This definition has two parts. First, in the U.S. political system (as with most constitutional systems incorporating judicial review), the court’s constitutional role preserves “higher” lawmaking moments against “lower” lawmaking ones. Second, this distinction can be connected to the perception that a court has gone beyond merely interpreting a constitution.

Higher Versus Lower Lawmaking

Central to the definition of judicial activism is Ackerman’s distinction between higher and lower lawmaking. This distinction posits two levels of democratic lawmaking. The Constitution, including its amendments, represents higher lawmaking. According to Ackerman, these are moments of heightened deliberative democratic debate where the “people” do more than simply pass a law. They engage in constitutional decision making, not just legislative decision making. Statutes, laws, policies, executive orders, and the like are instances of lower lawmaking. After all, consider that the process for amending

the U.S. Constitution is far more onerous than simply passing a law. Amending, for instance, requires ratification by three-quarter of the states. Higher lawmaking, then, is substantively more democratic than a simple law or statute. The role for the court is to preserve higher lawmaking moments from lower ones by invalidating laws that conflict with the Constitution. (This is a separate issue from whether other branches may perform this preservationist role.)

For instance, if Congress were to pass a law that instituted a national religion, the court’s duty would be to strike it down even though a current majority favors it. The law conflicts with the First Amendment’s establishment clause. If a state were to pass a law that disenfranchised women, the court’s duty would be to invalidate it under the Nineteenth Amendment. These would not be instances of judicial activism. Rather, they represent the dualist legal structure of a written constitution in which the court thwarts current majority interests that conflict with the higher democratic interests of the Constitution. The court, in this view, must preserve these hard fought “constitutional moments.”

Beyond Constitutional Interpretation

If Ackerman’s argument is correct, then the question of judicial activism (sometimes seen under the rubric of institutional power), spills over into the question of judicial interpretation of the constitution. It implies that the court’s role is to interpret the Constitution by invalidating laws and statutes that are inconsistent with it. Judicial activism is thus the perception that the court has engaged in higher lawmaking; it has gone beyond interpretation. By co-opting the constitutional democratic process, and in particular its amendment procedures, the court goes beyond its role as merely the preserver of higher lawmaking. Rather than seeking to uphold the higher law against its lower counterpart, the court improperly makes higher law. This explains why judicial activism is widely viewed as illegitimate. It does not allow the relevant democratic polity to deliberate, debate, and ultimately decide constitutional issues.

Sanford Levinson proposes a useful typology for appreciating the bounds of interpretation. He posits a sliding scale of constitutional change from interpretation, to amendment, to revision, and to revolution. An interpretation is a judicial decision that “was already immanent within the existing body of legal materials. ”An amendment, on the other hand,“ represents a genuine change not immanent within the preexisting materials.” (1995, 20–21). Judicial activism is the perception that the court has genuinely changed the document. Such changes or amendments, he and others argue, must occur through the “people,” not the court.

If one accepts this framework, the perception that the court has engaged in higher lawmaking still often hinges on what theory of interpretation an individual adopts. Crudely put, the two opposing theories are static and dynamic ones. The static conception, often associated with originals, contends that constitutional language must be understood as it was written. Its dynamic counterpart contends that constitutional language must be interpreted in a way that expands or informs liberty. A judge who deploys a dynamic theory of interpretation may interpret equal protection to strike down legislation that limits marriage to opposite sex couples or may interpret constitutional language to expand rights; this can be seen by the static camp as judicial activism. However, by insisting on the original language or meaning of the text to strike down a law relevant to a situation never envisioned by the framers of a constitution or its amendments, originality can be accused also of judicial activism by the dynamic camp. Thus, the charge of judicial activism goes beyond any particular theory of interpretation: conservative or liberal. It rests on the perception that the court has exceeded its constitutional role by engaging in higher lawmaking rather than simply upholding it.

Bibliography:

Ackerman, Bruce. We the People: Foundations. Vol. 1. Cambridge, Mass.: Harvard University Press, 1991.
Amar, Akhil. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.:Yale University Press, 1998.
Barnett, Randy. Restoring the Lost Constitution: The Presumption of Liberty. Princeton, N.J.: Princeton University Press, 2005.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. 2nd ed. New Haven, Conn.:Yale University Press, 1986.
Blasi,Vincent, ed. The Burger Court: The Counter-revolution That Wasn’t. New Haven, Conn.:Yale University Press, 1983.
Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005.
Dworkin, Ronald. Freedom’s Law:The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard University Press, 1996.
Ely, John. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.
Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington D.C.: Congressional Quarterly Press, 1998.
Fallon, Richard H. The Dynamic Constitution: An Introduction to American Constitutional Law. Cambridge: Cambridge University Press, 2004.
Keck,Thomas. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press, 2004.
Levinson, Sanford. “How Many Times Has the United States Constitution Been Amended?” In Responding to Imperfection: The Theory and Practice of Constitutional Amendment, edited by Sanford Levinson, 13–36. Princeton, N.J.: Princeton University Press, 1995.
Peretti,Terri. In Defense of a Political Court. Princeton, N.J.: Princeton University Press, 1999. Roe v.Wade, 410 U.S. 113 (1973).
Roosevelt, Kermit. The Myth of Judicial Activism: Making Sense of Supreme Court Decisions. New Haven, Conn.: Yale University Press, 2008.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton Press, 1997.
Schwartz, Bernard, ed. The Warren Court: A Retrospective. New York: Oxford University Press, 1996.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press, 2002.
Whittington, Keith E. Constitutional Interpretations:Textual Meaning, Original Intent, and Judicial Review. Lawrence: University of Kansas Press, 1999.
Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, N.J.: Princeton Press, 2007.

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