Activism and Federalism

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."