Friday, July 15, 2005

What We Can Learn From Schlesinger's 1947 Formulation of "Judicial Activism"

Brian Tamanaha

In 1947, Arthur M. Schlesinger wrote an essay on the Supreme Court in Fortune contrasting the approach taken by the “judicial activists” (represented by Justices Black and Douglas), with the approach taken by the “champions of self-restraint” (represented by Justices Frankfurter and Jackson):

One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or for worse….

The Black-Douglas view is founded upon a realistic analysis of the workings of the judiciary. This analysis rests upon ideas particularly dominant at the Yale Law School…

The Yale thesis, crudely put, is that any judge chooses his results and reasons backward. The resources of legal artifice, the ambiguity of precedents, the range of applicable doctrine, are all so extensive that in most cases in which there is a reasonable difference of opinion a judge can come out on either side without straining the fabric of legal logic. A naïve judge does this unconsciously and conceives himself to be an objective interpreter of the law. A wise judge knows that political choice is inevitable; he makes no false pretense of objectivity and consciously exercises the judicial power with an eye toward social results…
Justices Black and Douglas believed that the Constitution and statues were open enough in texture that they could and should be interpreted in ways that comport with social justice.

Frankfurter and Jackson, in contrast, felt that, except in cases of clear violations of the Constitution, the judges must defer to legislative will:

The adherents of Frankfurter feel that Black and Douglas by substituting their own for the legislative preference, tend toward a state of judicial despotism that threatens the democratic process…

The obligation of the Court, they argue, is not to make wise policy decisions; it is to sustain and strengthen the process of political compromise. If the legislature makes mistakes, it is up to the legislature to correct them.

Frankfurter wrote,…as a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I cherish them or how mischievous I may deem their disregard…

Self-denial has thus said: the legislature gave the law; let the legislature take it away. The answer of judicial activism is: in actual practice the legislature will not take it away—at least until harm, possibly irreparable, is done to defenseless persons; therefore the Court itself must act. Self-denial replies: you are doing what we all used to condemn the old Court for doing; you are practicing judicial usurpation. Activism responds: we cannot rely on an increasingly conservative electorate to protect the underdog or to safeguard basic human rights; we betray the very spirit and purpose of the Constitution if we ourselves do not intervene.
Those espousing judicial restraint held that, in a democratic society, it was for the legislature to fill in the law as they desired, except when committing clear and unambiguous Constitutional violations. Those espousing judicial activism emphasized the openness of the Constitution and statutory provisions to multiple interpretations, and held that judges cannot help but fill in the law while fulfilling their duty to vindicate Constitutional rights. Both sides granted presumptive validity to legislation, but judicial activists were more wont to overcome this presumption.

This contrast, likely the first use of the now common phrase "judicial activism," was drawn by Schlesinger a decade after Roosevelt’s infamous “court-packing plan,” which marked the end of the Supreme Court’s series of decisions invalidating New Deal legislation.

When applied to the current Supreme Court, Schlesinger’s contrast offers several interesting insights.

Consider the table produced by Paul Gerwirtz and Chad Golder (New York Times, July 6, 2005, A 19), indicating the propensity of individual justices to vote to strike Congressional laws when challenged in a given case:

Thomas 65.63%
Kennedy 64.06%
Scalia 56.25%
Rehnquist 46.88%
O’Conner 46.77%
Souter 42.19%
Stevens 39.34%
Ginsburg 39.06%
Breyer 28.13%

Although I have not compiled the individual votes of the justices in the earlier period, a comparison would likely reveal that even the most activist justices when Schlesinger wrote would place near or below the least activist justices today. If so, Schlesinger’s contrast arguably is no longer applicable because the opposing “judicial restraint” position has been vacated.

From 1937 to 1953, the period in which Schlesinger wrote, the Supreme Court invalidated only 3 federal statutes on constitutional grounds (annual average 0.18). In contrast, from 1995 to 2003, the current Rehnquist Court invalidated 33 such statutes (annual average 3.67). Prior to the court-packing plan, from 1930 though 1936, the notorious Hughes Court struck 14 federal statutes (annual average 2.00). Even the supposedly activist Warren Court struck a relatively modest total of 23 federal statutes from 1954 to 1969 (annual average 1.53) (the above statistics were compiled by the Congressional Research Service, which I have taken from Thomas Keck’s superb study, The Most Activist Supreme Court in History).

A somewhat different picture appears if one examines instead the invalidation of state and local statutes on constitutional grounds. The annual average of the Rehnquist Court from 1995 to 2003 was 4.78, which is lower than the 6.35 annual average of the Supreme Court in the period from 1937-1954. The relatively low average of the Rehnquist Court—to get some perspective, consider that the Burger Court’s annual average was the all-time high of 18.18—is consistent with its proclaimed state’s rights orientation (though the state number was still higher than the average number of federal statutes the Court invalidated during this period), but it is not markedly lower than the 1937-1954 Supreme Court, which was openly friendly to the ongoing expansion of federal power.

Constitutional law scholars are well aware of the activism of the Rehnquist Court, so there is nothing new here, although statistics help make it more concrete.

A more telling point to be drawn from Schlesinger’s contrast has to do with an odd juxtaposition in the underlying judicial philosophy of justices who are activists. In Schlesinger’s contrast, the judicial activists had adopted the Legal Realist’s arguments about the indeterminacy of law.

Justices Thomas and Scalia, who rank as the first and third most activist judges on the Gerwitz/Golder table, however, have espoused versions of Originalism, which is as far away from Legal Realism as one can get today. [I will ignore Kennedy, ranked second for activism, whose judicial philosophy I will not hazard to characterize].

So how do we explain that, on the propensity toward activism scale (understood in Schlesinger’s terms as a willingness to strike legislation), today’s neo-formalists take their place at the top of the list, in the same position as (if not more activist than) the earlier group of Realist-influenced justices who held nearly opposite views about Constitutional interpretation?

A Realist would say that Originalism is a pose used by Thomas and Scalia to conceal result-oriented decisions (or, in the alternative, that they are not dishonest but deluded about the degree of determinacy provided by Originalist arguments). Originalists would say that this is the consequence of applying an Originalist understanding to an overreaching federal government that routinely transgresses constitutional boundaries. It is not that Thomas and Scalia are less deferential, but rather that the Congress today is more apt to pass unconstitutional legislation.

Support can be offered for both positions, which I won’t bother to repeat, because they are beside the point. The lesson to be drawn here is that, if the goal is less judicial activism, a judge’s particular theory of constitutional interpretation is not the key consideration. A supposedly freewheeling Realist (or pragmatist) judge and a supposedly restrained Formalist judge can both be equally activist in their propensity to strike legislation.

So what does matter if we want judges who are less activist?

Find judges who truly believe that invalidating legislation is the gravest of all judicial acts, which, accordingly, can be done only under compelling circumstances involving the utmost constitutional necessity. Think of a police officer contemplating whether to fire a gun at a fleeing suspect in a crowded shopping mall; the officer won’t pull the trigger, even if that means the suspect will get away, unless there is a near certainty that great harm will result from not pulling the trigger. If we want less activism, a judge must think of striking legislation in these terms: only to be done when there is a near certainty that great constitutional harm will otherwise result.

This attitude is far more significant than a judge’s particular philosophy on how the constitution is to be interpreted (Originalist, pragmatist, or any other). Anything less than this attitude will assure the continuance of activism.

How many justices on the Supreme Court (and judges more generally) genuinely think in these terms?

But perhaps that is the wrong question. It may be that the main reason we have judicial activism today is that people actually want judges to strike legislation, or, more precisely, to strike legislation they don’t like.


It depends on the cases accepted for review. For instance, the cases accepted encourages the activist judges of the current day to vote the way they do. If a different sort of focus was present, Breyer probably would strike down more legislation.

Ditto in the late 1940s. In time, Black and Douglas struck down a lot of laws, at least in the civil liberties arena. But, many of the cases taken in the late '40s focused on New Deal legislation both agreed with. Thus, control of the docket, and cert. decisions are of some concern here.

The problem with trying to measure "activisim" so defined, by just counting laws struck down, is that "clear and unambiguous Constitutional violations" are pretty thick on the ground these days. A Justice, in order to NOT be voting to invalidate large numbers of laws, would have to have given up almost entirely on the whole concept of enumerated powers, and limited government.

Which pretty much DOES describe the majority on the Court.

Tamanaha said:

"Although I have not compiled the individual votes of the justices in the earlier period, a comparison would likely reveal that even the most activist justices when Schlesinger wrote would place near or below the least activist justices today."

Well, almost. It just so happens that I recently did look at the votes -- including those in which the Court could have struck down a federal law, but, in the aggregate, chose not to do so -- in a paper here. And, while there are some differences, the nut of it is that extremists -- on both the left and the right -- tend to me more activist than moderates.

Hello Brian,

Arthur Schlesinger, Sr. liked to muddy the waters by redefining the language. If you start out with the premise that black is white and up is down you can prove almost anything. His redefinition of judicial activism is nonsense.

An activist judge is one who substitutes his own Will for the actual meaning of the law, as originally understood and intended by those who wrote it (and, in the case of constitutional law, by those who ratified it). An activist judge is not simply one who votes to uphold the constitutionality of legislation least frequently. If that were the case then we would best be served by abolishing the Supreme Court altogether, and leaving Constitutional interpretation to Congress. (That's not an original idea, BTW; see Federalist No. 78.)

To rule that a statute is unconstitutional is an activist ruling ONLY if the statute is NOT actually in conflict with the originally understood meaning of the Constitution (or of both constitutions, State and federal, when there is a State constitutional issue involved).

In other words, what matters is Truth. If, when ruling on the constitutionality of a statute, a jurist tells the truth about the actual original meaning of the Constitution and how it applies to the statute in question, then he is ruling properly. But if he lies about the Constitution's meaning or applicability, perhaps inventing obfuscatory artifices like "emanations and penumbras" to get the result he wants, then he is behaving as a judicial activist. (In Federalist No. 81 the Framers suggested impeachment of such jurists!)

If a statute is in conflict with the Constitution, then for a jurist to rule that the statute is NOT unconstitutional is a lie, and an activist ruling, because such a ruling permits the legislative branch to effectively amend the Constitution without following the process in the Constitution which the People have defined for making Constitutional amendments.

You should think of constitutions as similar to limited powers of attorney, by which the People define certain enumerated responsibilities and grant certain enumerated powers to governments (State and federal) which are constituted for the purpose of fulfilling those responsibilities. The constitutions are the Peoples' instructions to the governments which are constituted to act as the People's agents, on their behalf. A proper judicial ruling is one which follows those instructions faithfully, and activist ruling is one which does not.

When analyzed in this way, Thomas and Scalia are plainly the least activist members of the SCOTUS, because they most consistently defer to the original understanding of the meaning of the Constitution and laws, and are least inclined to let their own Will color their legal judgment. Beyer, Ginsberg, Stevens, and Souter are the most activist jurists, because they are least deferential to the originally understood meanings of the Constitution and laws.


-Dave Burton
dave at burtonsys dot com

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