Balkinization  

Wednesday, July 06, 2005

Activism and Federalism

JB

Paul Gewirtz and Chad Golder's op-ed in today's New York Times points out that if one measures judicial activism by how often judges strike down acts of Congress since 1994, the Supreme Court's liberals have been least activist and the Court's more conservative members, particularly Justice Thomas, have been the most activist.

This should come as no surprise, since the majority of these statutes fell as a result of the Rehnquist Court's federalism revolution. In the past decade or so a 5-4 majority went through the federal statute books and pointed out what, in their opinion, undermined the dignity of the states. One suspects that if one looks only at constitutional challenges to statutes that don't involve the Tenth and Eleventh Amendments, the divisions between the Justices are far smaller, but I don't have the statistics.

Gewirtz and Golder don't talk about judicial decisions that strike down state laws. That is because they argue that Congress, as the national legislature, has the greatest democratic legitimacy. But that begs the key question that still separates many liberals from many conservatives: federalism. For many conservatives, state decisionmaking is an independent constitutional good, and they prefer to have lots of issues decided differently in different states. So the fact that the more conservative Justices strike down lots of laws at the national level that impinge on the states does not suggest that they lack respect for democracy. Rather, it bespeaks a disagreement about what democracy means. It's not about the activism. It's the federalism, stupid.

That sounds like a pretty good rejoinder until you realize that the conservative judges on the U.S. Supreme Court tend to be fair weather federalists, and when an issue comes around that they really care about, they don't defer to state legislatures much either these days. The recent Kelo case is a good example; The liberal Justices preached judicial deference to local authorities and argued that legislatures could provide the best solution to the problem of overreaching by business interests. The more conservative Justices argued that courts should not defer and that there should be a single, nationwide rule prohibiting taking private property for economic development. So much for laboratories of state government. And don't get me started on Bush v. Gore.

Indeed, it would be well worth running the numbers on state cases since 1994. My guess is that you would find a more complicated story, with liberals striking down their share of laws, but with conservatives getting in their licks too. For example, liberals have voted to strike down laws involving regulation of abortion and homosexuality. On the other hand, they consistently voted to uphold state affirmative action programs and, as the recent Kelo case demonstrates, they have been quite reluctant to use judicial review in takings clause challenges. Conservatives have been on the other side; while decrying the use of the Due Process clause to protect abortion and homosexuality, they have wielded the Takings Clause with a vengeance, and used the Free Exercise Clause and the Free Speech Clauses-- liberally, we might say-- to protect religious groups, advertisers and campaign contributors. Conservatives also discovered how truly useful the Equal Protection Clause could be in attacking affirmative action programs and minority-majority districting.

This is another way of saying that following the liberal rights revolution of the 1960's and 1970's, conservatives created their own rights revolution, with a different set of rights. In the liberal heyday of the middle of the twentieth century, conservatives generally preached judicial restraint, and accused liberal jurists of activism. But once conservative social movements arose and began to dominate American politics, they learned that they could use many of the same tools that liberals had. Conservative interest groups created their own public interest firms, conservative think tanks came up with creative constitutional arguments, and a judiciary staffed increasingly with conservative judges found that judicial restraint made much less sense when you actually had power. So, naturally, we find that conservative judges have been willing to use the power of judicial review early and often. The public association of conservativism and judicial restraint and liberalism and activism that came out of the 1960's may linger on, propelled in part by conservative talking points, but it makes little sense today. Justice Thomas, to take only one example, would gladly take a cleaver to wide swaths of United States Statutes and most of the Federal Register.

At the end of the day, Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint. All this suggests that we should focus on who has the better interpretation of the Constitution, rather than on who is an "activist."


Comments:

I don't think much turns on the words, so I can agree with your conclusion. But I have always thought that the thing an "activist" judge does is not "something rather than nothing" but deciding cases contrary to the law. To be sure, the most egregious cases come when rights get made up out of nowhere (or out of emanations and penumbras, if you prefer); but it would be just as much activist for a court to refuse to protect individual liberties that have been constitutionally (or legislatively) protected out of a judge's own disagreement with the received law.

It is that arrogating to oneself the power to legislate that constitutes activism. That is why the whole notion of a living constitution is an activist one: well, of course the framers didn't protect reproductive autonomy, but they announced principles that we in our wisdom (because history only moves progressively--we're the most enlightened people ever, ipso facto!) can say today require this or that new right (Roe, Lawrence, etc.).

Thus, the Kelo court's decision was activist, and knowingly so, in relying on "evolving" circumstances that make "public purpose" a better clause than "public use", the one that is actually there. This is a conscious, explicit, "living constitution" kind of activism, and it results in allowing a law to stand. In a government of enumerated and divided powers, it is crucial that judicial humility result in the policing of Congressional and Executive power according to the enacted wishes of the legitimate lawgiver, not the evolutionary editing of judges.

To my mind, Justice Thomas's apparently limitless deference to the executive in matters arising in war constitutes activism (compare his opinion with Justice Scalia's in Hamdi, for instance). Again, that's "passivity" on Thomas's part in that he defers to the executive, but it is an activist pursuit of a take on the war power of the executive warranted by neither the text nor the history of the constitution as he usually applies those terms.
 

Professor Balkin,

I have crossposted on this over at expost.blogspot.com, and responded there also to your point about Bush v. Gore. It is my view that Prof. Monaghan showed that Bush v. Gore is not an offense against the federalism of the justices who voted for it in this paper: http://www.columbialawreview.org/pdf/Monaghan.pdf I would be interested in your own reply to Prof. Monaghan's arguments, which I presume entails more than "don't get me started."

The reason for my raising this is that, as in the analysis of activism, where it is a mistake to assume that judicial review simpliciter constitutes activism, so also when it comes to federalism we should not presume there is an absolute deference owed to states by federalists, lest they open themselves to charges of selective application of principle. Both the meaning and application of activism and federalism admit of and require more nuance than that.

Thanks,

T. More
 

Professor Balkin,

You write that "Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint."

I absolutely agree that this is what they have shown, and I agree that "everyone should have already known" that, but the sad, sad fact is that very few people do know that. Conservative rhetoric labeling moderate progressives as "activist" is accepted by most of the national media without critical questioning. President Bush routinely uses the word "activist" judge without anybody in the media asking whether the accusation holds up to scrutiny or is consistent with the president's views on specific cases. So I think Chad Golder and Professor Gewirtz have done a great service in that respect, and I hope there work is noticed widely.

Mike
 

Regarding judicial review and activism, I recently read Barry Friedman's "The Cycles of Constitutional Theory", available at:

http://ssrn.com/abstract=678361

demonstrating SCOTUS cycles over the years. Here we go again.
 

Dear T. More:

Monaghan's basic view-- that in some cases federal courts must determine the content of state law to decide an antecedent federal question-- is unexceptional. However, the degree and scope of federal determination necessary to decide the particular Article II, section 1 issues in Bush v. Gore is quite controversial. In my Yale Law Journal piece in 2001 I argued that there were good reasons to think that the Florida courts got most of the state law issues right, or at the very least that their readings were sufficiently plausible that they should be respected under a theory of federal review (consistent with Article II, section 1) that gave state courts at least some deference in the construction of their own law. Conversely, I argued that Justice Rehnquist's constructions of Florida state law were strained and seemed like special pleading designed to reach a particular favored result.

Monaghan's article, as you know, addresses Rehnquist's concurrence in Bush v. Gore, and not the majority holding of five justices. Those five-- the same five that decided most of the Rehnquist Court's key federalism cases-- made new law in the equal protection area that showed much less deference to state *executive* and *legislative* branches than had previously been the case. (By contrast, the Rehnquist concurrence argued for no deference to the state's *judicial* branch).

Before Bush v. Gore, federal courts largely avoided equal protection challenges to how states counted their votes, as opposed to how they drew their voting districts. The standard justifications for doing this were familiar notions of federalism, the fact that the way that states organized vote counting was one of their traditional functions, etc. Before the litigation that led to Bush v. Gore, most election law scholars, and indeed, most constitutional scholars, assumed that the federal courts would stay out of equal protection challenges to Florida's vote counting procedures, and regarded the Bush team's attempts to raise an equal protection challenge as a sort of Hail Mary pass.

When the Supreme Court Justices found that they could not agree on a single rationale to reverse the Florida Supreme Court in Bush v. Gore (Bush II), they cobbled together a five person majority on a new equal protection rationale that expanded old Warren Court precedents (in particular Harper and Reynolds v. Sims). Conservatives had long complained about these precedents as prime examples of the Warren Court's judicial activism and its lack of respect for local self-determination. However, this did not appear to bother the Federalism Five. They announced a new rule in Bush v. Gore that expanded federal oversight of state election law practices. I think that the basic idea of extending the equal protection clause to guarantee fair procedures for vote counting as well fair districting practices is not necessarily a bad thing at all, but then, I'm not a conservative who regularly defends federalism and objects to federal intervention in practices traditionally governed by state law.

My complaint with the majority opinion in Bush v. Gore is not so much that the Federalism Five abandoned their federalist principles and embraced liberal Warren Court equal protection precedents. Rather it is with the remedy they crafted for the equal protection violation. Instead of remanding to count the votes equally, they simply stopped all counting, leaving in place a count that did not conform to federal equal protection standards. That result makes sense if you buy the Article II, section I theory, but not if you buy the equal protection theory. So, what the Federalism Five did was in some ways the worst of both words from the standpoint of federalism. They used a theory on the merits (equal protection) which refused to defer to the state's legislative and executive branches, and a theory of remedy that was consistent with a theory that showed no respect for the state's judicial branch.

It is this combination-- expansion of liberal precedents plus a remedy that didn't actually make sense given the equal protection theory chosen-- that led many people to conclude that the Bush v. Gore majority simply wanted to reach a certain result, and constitutional principles be damned. Well, see, I told you not to get me started on Bush v. Gore. . . .
 

Prof. Balkin,

Thanks for the careful reply. Yes, I agree with you (and Monaghan) that the majority opinion was inadequate; of course, I would say that O'Connor and Kennedy are not actually committed to terribly principled jurisprudence. My recollection is that Scalia and Thomas joined Rehnquist, whose concurrence did do a better job (perhaps with less haste they might have matched Monaghan) in dealing with the apparent federalism contradiction.

I will also say this, that while I think the case was rightly decided, it appeared that at least two or three (O'Connor & Kennedy on the basis of the majority opinion, Rehnquist on the basis of comments he made outside relative to the case) justices were voting to avoid "chaos", which was inappropriate. Had the election gone to the House, it might have been chaotic, but that's only because the law calls for that particular chaotic remedy.

I just don't think the case, however unsatisfying it surely is in various aspects, stands for naked hypocrisy in the way that it is often suggested it does.

But, however much I admire the jurisprudence of Scalia and Thomas, I think of the majority opinion they joined there it must be said (and here I speak of the opinion more than the result, which can be justified) that (as Scalia said of Quirin I believe) "this was not the Court's finest hour."

Thanks for letting me get you started...
 

This comment has been removed by a blog administrator.
 

Focusing one's criticism on federalism and decisions against states misses the larger problem with the G&G/NYT analysis. Because of the way the cert process works, there is a natural selection effect: given that, from 1994-2004, the Court was dominated by right-wingers, it is necessarily the case that those folks will be in the majority most of the time, including in those cases in which the Court struck down federal laws.

Because of this dynamic, it's important to consider periods in which one ideological faction did not dominate the Court as consistently as during this most recent natural Court. As it happens, I did this recently, for a much longer period than G&G looked at (1953-2002); the preliminary results are in a paper located here.

This paper is perhaps a bit mathematical for some of my law-school friends, and like G&G also limits the analysis to federal statutes (I'm working on the state-law analyses now) and so misses a good bit of what might be interesting about activism defined in this way. At the same time, the findings are clear, intuitive, and robust: It is extremist justices and Courts -- on either end of the ideological spectrum -- that tend to be activist, while more moderate justices are less so.
 

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