an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The term "judicial activism" may well be incoherent: for the proper question is not whether judges are active or passive but whether they are endeavoring to be faithful to the Constitution's text and enduring principles. But the practice of attacking the courts and talking back to them using phrases like "judicial activism" is quite important. It is important because, ironically, it keeps the work of courts responsive to popular will over long periods of time.
The American Constitution has lots of empty spaces and abstract guarantees. They have to be filled in over time and implemented in concrete circumstances. This task-- constitutional construction-- is a major job of courts.
A recent column by Ross Douthat is entitled "Justices Gone Wild," which suggests that our judges are indeed, on a rampage, and it is really only a miracle that we have been spared from destruction by their crazy hijinks. In fact, though, judges are almost never on a rampage. Over the past half century, political scientists have shown that the Supreme Court rarely departs for very long from the views of the national majorities, and it is part of the national political coalition, not independent of it. If the Justices get out of line-- usually because political majorities have changed and moved on to new positions-- the appointments process shifts the median Justice and pushes the Court back into line. In addition, even without new appointments, the Justices are constantly subject to the political pressure of public opinion. Judicial independence is only relative. It insulates courts from day to day pressures, but the cumulative pressures are very real and in the long run they shape what courts do.
In fact, in a period of extreme political polarization, such as the period in which we now live, the Supreme Court tends to be far more moderate than the leadership of either of the two major political parties, which, ironically, makes it a better representative of national public opinion.
Because political pressure is pushing so heavily from advocates on both sides, the Supreme Court tends to come out in the middle, making neither side entirely happy, and egging them on to even more angry denunciations about opposite sets of cases. (For example, the left screams about abortion restrictions and gun rights, the right screams about affirmative action and Kelo). This leads to more moderation, more angry denunciations, and so on.
Thus, instead of Courts Gone Wild, it would probably be more accurate to describe our current situation as Courts Gone Mild. Or perhaps even more accurately, the slogan should be Courts Pushed Into the Middle of the Road by Two Political Parties Gone Wild.
When it looks to us as if judges are on a rampage, then, it is usually because they are influenced by popular opinions that we don't agree with. That may be because we are part of a regional majority rather than a national majority. Or it may be because the judges were put in place by a dominant social or political movement that we oppose.
Douthat gives two examples of judges gone wild. The first is the civil rights revolution of the 1960s. The second is the Rehnquist Court's federalism revolution in the 1990s. The first is the result of a liberal court working hand in hand with a liberal national political majority. The Warren Court and early Burger Courts mostly upheld national legislation; but they brought local and state governments into line with the then-dominant liberal values of the national political coalition. The far more conservative Rehnquist Court of the early 1990s was the result of the triumph of the conservative movement. It promoted federalism and devolution in response to a public shift toward those themes. (Remember Newt Gingrich and the Contract with America?) The Rehnquist Court also limited or struck down a variety of civil right provisions passed by previous Congresses that reflected a more liberal coalition that conservatives opposed.
In the 1960's political conservatives were appalled by the Warren Court's civil rights revolution, just as political liberals in the 1990s were made apoplectic by the Rehnquist Court's federalism revolution. In each case, they screamed judicial activism (or the equivalent slogan of the day). In each case, however, they were actually in the political minority nationally even if they enjoyed majority status in parts of the country.
As I like to put it, in the long run the Supreme Court is not countermajoritarian-- it is nationalist. People often say that other people-- the ones they disagree with-- turn to the courts when they cannot get what they want in the legislatures. It would be more correct to say that national political majorities turn to the courts to implement their values in ways that would be difficult or inconvenient otherwise, or might threaten to split their coalitions.
It may sound, then, as if attacking courts for activism is just sour grapes for political losers. Quite the contrary. Attacking the work of the courts is as American as apple pie. It is an important part of the way that a social and political movement gains adherence and persuades others that their vision of the Constitution and their views of public policy are better ones. Thus, out of defeat in the courts often comes later political victory. That political victory, in turn, shapes the work of the courts in the next generation, which revise or substantially reshape the work of previous courts. People who do not like those revisions, in turn, claim that the courts have gone wild; they engage in political activism to shape public opinion, and so on.
If we take a wider view of history, then what we do not see is judges on a rampage. Rather we see a judiciary that is in the long run responsive to changes in popular opinion and the national political coalition. "Judicial activism" may be an incoherent slogan, but the practice of complaining about courts and talking back to them is what makes our constitutional system responsive to popular will over time. Posted
by JB [link]