California Law Review
*1441 THE ORIGIN AND CURRENT MEANINGS OF "JUDICIAL ACTIVISM"
Keenan D. Kmiec [FNd1]
2004 California Law Review, Inc.;
Keenan D. Kmiec
Early History of the Term "Judicial Activism"
A. In Search of the Earliest Use .................................. 1444
B. First Recorded Use: Arthur Schlesinger in Fortune Magazine ..... 1445
C. Early Usage of "Judicial Activism"
D. Early Scholarly Examination of Judicial Activism ............... 1452
E. First Judicial Use of "Judicial
Activism": Judge Joseph C.
Hutcheson, Jr...................................................... 1455
F. Other Noteworthy Discussions of "Judicial Activism" in
Opinions .......................................................... 1459
Definitions of Judicial Activism ...................................
A. Striking Down Arguably Constitutional Actions of Other Branches 1463
B. Ignoring Precedent ............................................. 1466
1. Vertical versus Horizontal
Precedent ......................... 1466
2. Constitutional versus Statutory
versus Common Law Precedents . 1469
C. Judicial Legislation ........................................... 1471
D. Departures from Accepted Interpretive Methodology .............. 1473
E. Result-Oriented Judging ........................................ 1475
Speaking at a
recent symposium, Judge Frank Easterbrook opened with an ostensibly safe
sentence: "Everyone scorns judicial activism, that notoriously slippery
term." [FN1] Yet even this observation cannot go unqualified. Most
would agree that judicial activism is indeed slippery. But some scholars, [FN2] including at least one sitting Supreme Court Justice, [FN3] have suggested that in
some contexts, it is not always a bad thing. This is the problem: one can
scarcely make an observation about judicial activism today without appending
definitions, provisos, and qualifications.
During the 1990s,
the terms "judicial activism" [FN4] and "judicial
activist" appeared in an astounding 3,815 journal and law review articles.
[FN5] In the first four years of the twenty-first century, these
terms have surfaced in another 1,817 articles--an average of more than 450 per
year. [FN6] Judges today are far more likely to accuse their
colleagues of judicial activism than *1443 they were in prior decades. [FN7] And the term has assumed a prominent role in public
debates, appearing regularly in editorial pages, [FN8] Web "blogs," [FN9] political discussion,
and confirmation battles.
Ironically, as the
term has become more commonplace, its meaning has become increasingly unclear.
This is so because "judicial activism" is defined in a number of
disparate, even contradictory, ways; scholars and judges recognize this
problem, yet persist in speaking about the concept without defining it. Thus,
the problem continues unabated: people talk past one another, using the same
language to convey very different concepts.
This Comment does
not seek to attack or defend any particular notion of judicial activism, nor
does it proffer an entirely new theory of the term. Instead, it modestly
assembles theories of judicial activism that have gained widespread acceptance, linking them to history,
caselaw, and other scholarship. Its purpose is to clarify the meaning of
"judicial activism" when it is used in different contexts, so that
those who use the term can communicate their ideas more effectively.
To achieve this
end, this Comment begins by exploring the neglected history of the concept of
judicial activism. Over half a century ago, a scholar wrote that he lived in
"a day that hears much talk of judicial activism," [FN10] and thirty years ago, Judge Friendly wrote that he lived
in the "days of judicial activism." [FN11] Yet basic questions
about the term remain unanswered: Who was the first to use it? What did it mean
initially? Which scholars and judges ushered it from obscurity to ubiquity?
Part I recounts
several important and heretofore unexplored moments in the history of the term
"judicial activism." It analyzes perhaps the earliest published work
to mention it, two of the first scholarly articles devoted to it, and the first
judicial opinions to invoke it. This Part demonstrates that from the beginning,
there was no single, accepted definition of "judicial activism." The
term has always embodied a variety of concepts, and it is imperative that
speakers explain which meaning they seek to employ.
II turns from history to modern uses of the term "judicial activism,"
surveying the range of meanings and applications it has acquired. It fleshes
out the definitions suggested in Part I while integrating comments from prominent scholars, instructive lower court
cases, and Supreme Court cases. This Part identifies five core meanings of
"judicial activism": (1) invalidation of the arguably constitutional
actions of other branches, (2) failure to adhere to precedent, (3) judicial
"legislation," (4) departures from accepted interpretive methodology,
and (5) result-oriented judging.
Some scholars have
suggested that in its present state, "judicial activism" is a
virtually empty term. [FN12] They rightly point
out that by itself, the label carries little more than a pejorative
connotation. Absent substantial context, even a well-meaning listener often
cannot gloss a deeper meaning. This Comment argues, however, that when
"judicial activism" is clearly defined, it can function as an instrument
for constructive discussion. Discussions about "judicial activism"
invite subsidiary questions that move the debate beyond soundbytes and
name-calling, and toward meaningful legal discourse. As Part I will show, early
treatments of the term evince a refreshing optimism about its potential to help
the legal community and the public to better understand the nature of judicial
decision making. If we tread carefully, there is still reason to share that
I Early History of the Term "Judicial Activism"
A. In Search of the Earliest Use
The idea of
judicial activism has been around far longer than the term. [FN13] Before the twentieth century, legal scholars squared off
over the concept of judicial legislation, that is, judges making positive law. [FN14] "Where Blackstone favored judicial legislation as the
strongest characteristic of the common law, Bentham regarded this as an
usurpation of the legislative function and a charade or 'miserable
sophistry."' [FN15] Bentham, in turn,
taught John Austin, who rejected Bentham's view and *1445 defended a
form of judicial legislation in his famous lectures on jurisprudence. [FN16] In the first half of the twentieth century, a flood of
scholarship discussed the merits of judicial legislation, and prominent
scholars took positions on either side of the debate. [FN17]
constitutional judicial legislation was particularly vehement during the
Lochner [FN18] era. Critics assailed the Court's preference for business
interests as it repeatedly struck down social legislation in the name of
substantive Due Process. [FN19] While some modern
scholars consider Lochner and its progeny virtually synonymous with
"judicial activism," [FN20] the term is
conspicuously absent from contemporaneous criticism. The New Deal and the
"revolution" of 1937 ushered in another spate of critical commentary,
but again, contemporaneous literature does not mention "judicial
activism" by name. Years later, after the justices agreed that the New
Deal was on firm constitutional ground, the term finally surfaced in legal
B. First Recorded Use:
Arthur Schlesinger in Fortune Magazine
One might expect
that the term "judicial activism" first appeared in a respected
judge's dissent, or in a seminal law review article. This does not appear to be
the case. [FN21] Rather, somewhat fittingly, the first use of the term *1446
to attract substantial attention from the public occurred in a popular
magazine, in an article meant for a general audience written by a non-lawyer.
Jr. introduced the term "judicial activism" to the public in a
Fortune magazine article in January 1947. [FN22] Schlesinger's
article profiled all nine Supreme Court justices on the Court at that time and
explained the alliances and divisions among them. The article characterized
Justices Black, Douglas, Murphy, and Rutlege as the "Judicial
Activists" [FN23] and Justices Frankfurter, Jackson, and Burton as the
"Champions of Self Restraint." [FN24] Justice Reed and
Chief Justice Vinson comprised a middle group. [FN25]
By 1947, none of
the justices openly questioned the constitutionality of the New Deal. Instead,
the Court split over the interpretation of legislation and "the proper
function of the judiciary in a democracy." [FN26] Schlesinger describes the competing approaches:
This conflict may
be described in several ways. The Black-Douglas group believes that the Supreme Court can play an
affirmative role in promoting the social welfare; the Frankfurter-Jackson group
advocates a policy of judicial self-restraint. One group is more concerned with
the employment of the judicial power for their own conception of the social
good; the other with expanding the range of allowable judgment for
legislatures, even if it means upholding conclusions they privately condemn.
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 *1447 the results the people want for better or worse. In brief,
the Black-Douglas wing appears to be more concerned with settling particular
cases in accordance with their own social preconceptions; the
Frankfurter-Jackson wing with preserving the judiciary in its established but
limited place in the American system. [FN27]
Each side that
Schlesinger portrayed in Fortune is the product of a distinct legal world-view.
The Black-Douglas view has its roots in the Yale Law School, which had strong
ties to both Black and Douglas. [FN28] This view perceived
legal reasoning as malleable, rather than scientific. [FN29] As Schlesinger describes, the Yale Law School
"Judicial Activist" camp believed and wrote that "[t]he
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." [FN30] In short, there are
no unassailable "right" answers, and policy concerns move to the
forefront. "A wise judge," if he accepts this philosophy, "knows
that political choice is inevitable; he makes no false pretense of objectivity
and consciously exercises the judicial power with an eye to social
Judicial Activists believe that law and politics are inseparable. They see
judicial decisions as "result-oriented," because no result is
foreordained. They adopt the famous Learned Hand dictum that "the words a
judge must construe are 'empty vessels into which he can pour nearly anything
he will."' [FN32] From this perspective, the Frankfurter-Jackson ideal of
judicial restraint begins to look like abdication of responsibility;
"deference" to the legal status quo becomes a decision to favor the
interests positioned to benefit from that status quo. According to the Judicial
Activists, Schlesinger writes, "The Court cannot escape politics: therefore,
let it use its political power for wholesome social purposes." [FN33] Judicial self-restraint is "at best a mirage." [FN34]
explains that the Champions of Self Restraint, on the other hand, are more
skeptical of individual judges' notions of justice. To them, laws have fixed
meanings, and deviation from those meanings is inappropriate, no matter which
groups may benefit from the departure. As a logical matter, they claim,
"[i]t is not clear that Black's solicitude for labor unions is per se more
reprehensible than [Justice] Pierce
Butler's, say, for *1448 railroad companies." [FN35] At its heart, then, the Frankfurter-Jackson school seeks
"to resist judicial supremacy, either of the right or of the left, in the
name of deference to the legislative will," [FN36] and rests on faith in the separation of powers and the
democratic process. [FN37] The Champions of
Judicial Restraint, according to Schlesinger, understand the judicial role much
as Justice Holmes did. [FN38] "If the
legislature makes mistakes, it is up to the legislature to remedy them. Any
other course will sap the vigor of our democracy by encouraging legislatures in
an irresponsibility based on an expectation that the courts will backstop their
wild pitches." [FN39]
view is predicated on the belief that all law is not politics. These justices
might have conceded that there are many close cases, but they believed that
common law, statutes, and the Constitution are not "empty vessels."
There is meaning, they would assert, and there are right answers. Just as
importantly, they thought that because reasonable people can hold vastly
different notions of justice, it is unfair and unjustifiable to force one's
view upon others. Any attempt to do so would lead "toward a state of
judicial despotism that [would] threaten[ ]the democratic process." [FN40]
pits these opposing views in a dialogue against one another, calling Frankfurterian
judicial restraint "self-denial":
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 *1449
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. [FN41] This exchange is
remarkable for its prescience and timelessness. It has been replayed in
slightly different words for decades in legal classrooms, public fora, and
scholarly journals. Concerns about failures of the political process, basic
human rights, and the ghost of Lochner are just as central and urgent in 2004
as they were in 1947. [FN42]
these opposing factions, Schlesinger takes sides. While he sympathizes with the
Black-Douglas wing of the Court, he perceives a threat to democracy inherent in
their position, and ultimately prefers to limit "judicial activism"
to civil liberties cases. He counsels that "basic decisions on all
questions save fundamental rights of political agitation be entrusted as
completely as possible to institutions directly responsible to popular
control." [FN43] This, of course, is a variant of the position taken by Justice Stone in footnote four of United States
v. Carolene Products Co. [FN44] Schlesinger's theory
even hints at the importance of procedurally-based democratic values, which
became the centerpiece of John Hart Ely's seminal book, Democracy and Distrust,
over thirty years later. [FN45]
article contributes to legal scholarship and popular debate as the first
significant commentary on "judicial activism." Schlesinger suggests
the layers of the clash: unelected judges versus democratically enacted
statutes; results-oriented judging versus principled decisionmaking; strict
versus creative use of precedent; democratic supremacy versus human rights; law
versus politics; and other equally fundamental dichotomies. Yet, even this
initial effort exhibits some of the symptoms of the classic malady that has
infected modern discussions of judicial activism. Schlesinger fails to define
his terms with precision. For example, would *1450 Bush v. Gore [FN46] or Roe v. Wade [FN47] qualify as
"judicial activism" according to Schlesinger? If so, why? Because
they (arguably) exhibited a lack of deference to the political branches?
Because they were (arguably) departures from precedent? Because they (arguably)
qualified as judicial legislation? Or perhaps because they were (arguably)
result-oriented? Schlesinger never explains what characteristic would make a
decision "activist." [FN48] Instead, he ascribes
so many attributes to the Judicial Activists and the Champions of Self
Restraint that it is impossible to determine which ones are necessary, sufficient, or superfluous. Of course, this
line of questioning is unfair: "Judicial activism" had no established
(or competing) definitions when Schlesinger used it. Nevertheless, to the
modern eye, the ambiguity in Schlesinger's article is frustrating.
Schlesinger had good reason to end his article on a positive note. He penned a
thought-provoking, constructive, and balanced article on a topic of great
public importance. As he saw it, "[t]he conflict on the Court, if it can
be restrained from intellectual and personal extremes, may lead to a debate in
the most fruitful tradition of American political thought." [FN49] Though current discussions of judicial activism often fail
to live up to this high standard, Schlesinger gave the concept a promising
C. Early Usage of "Judicial Activism"
As discussed above,
Schlesinger alluded to a number of meanings when he wrote of "judicial
activism." Many of these definitions are quite similar to those used
today. For instance, scholars often label the *1451 overturning of
democratically enacted statutes as "judicial activism," much like
Schlesinger did. [FN50] However, one other early meaning of the term has not
prevailed in modern usage: "judicial activist" as a term of
In its early days,
the term "judicial activist" sometimes had a positive connotation, much more akin to "civil
rights activist" than "judge misusing authority." Take, for
example, references to the late Justice Frank Murphy. Albon P. Man observed
that "Murphy's votes in civil rights cases reflect not only his
objectivity and independence as a judge but also his position as perhaps the
outstanding judicial activist on the Court." [FN51] Alfred L. Scanlan offered similar praise for Justice
Murphy's judicial activism in civil rights issues, answering the criticism that
such activism is undemocratic by replying,
We sanction the
decisions of the rule of the majority when they come from the duly and
democratically elected representatives of the people. When that majority will
tries to undercut or impair the basic principles upon which it rests, namely,
the free play of opposing views, practices, parties, etc., then the Court, as
guardian of the Bill of Rights, must step in. We will not tolerate democracy to
be destroyed in its own name. Justice Murphy grasped that. [FN52] The label of "judicial activist" is unmistakably
a compliment in this context, reflecting a belief that one ought to
aggressively employ judicial review to safeguard the rights upon which
democracy is predicated. [FN53] Scholars sometimes
referred to Justices Brandeis and Cardozo in much the same way. For example, a
1949 article observed, "Mr. Brandeis was a pragmatic judicial activist who
saw in the courts a powerful instrument to *1452 be grasped by the
people in ameliorating social and economic conditions."
Yet even in the
early days of its use, the term was most often considered a slight. As
now-judge Louis Pollak observed in 1956, "It seems safe to say that most
judges regard 'judicial activism' as an alien 'ism' to which their misguided
brethren sometimes fall prey." [FN55] By the mid-1950s,
the term had taken on a generally negative connotation, [FN56] even if its specific meaning was hard to pin down.
D. Early Scholarly Examination of Judicial Activism
While most early
articles discussing judicial activism merely mentioned it or devoted a few
paragraphs to it, one scholar recognized that the idea itself was worth careful
attention. Edward McWhinney, [FN57] then a
barrister-at-law and Professor of Law at the University of Toronto, brought a
comparative law perspective to the idea of judicial activism and helped turn it
into a topic worthy of serious scholarship during the 1950s.
McWhinney wrote two
articles devoted specifically to judicial activism. In the first, The Supreme
Court and the Dilemma of Judicial Policy-Making, [FN58] McWhinney seeks to "understand the philosophic
conflicts in the United States Supreme Court" much as Schlesinger did
nearly a decade earlier, by examining the "dilemma bequeathed to the
Court" by Justice Holmes. [FN59] McWhinney identifies
Holmes's "two-sided" view of the judicial role. First, there is the "judicial
self-restraint" concept [FN60] Holmes *1453
espouses in his famous dissent in Lochner v. New York, [FN61] which amounts to a "presumption of
constitutionality" for legislation even if a judge personally does not
care for it. [FN62] Judicial self-restraint is at odds, though, with another
component of Holmes' judicial philosophy: the "tradition of judicial
activism, involving the notion that in certain areas of subject matter, notably
the field of political and civil rights, the Court should look with a jealous
eye on legislation cutting down or trenching on those rights." [FN63] Under this tradition, a "judicial presumption of
invalidity (or unconstitutionality)" should arise for legislation
involving such rights, [FN64] as exemplified by
Holmes' opinions in free speech cases like Schenck v. United States. [FN65]
While not blind to
the inherent problems of judicial restraint, [FN66] McWhinney ultimately
prefers it to what he defines as judicial activism. First, McWhinney states
that "judicial review is not always a very efficient form of policy-making
. . . ." [FN67] Judges are well versed in the law but they are
"manifestly not the best equipped" to translate "community
values into constitutional policies . . . ." [FN68] Second, the adversarial process and "case or
controversy" requirements severely limit the efficacy of judicial
activism. McWhinney quotes Justice Frankfurter:
A court is
confined within the bounds of a particular record, and it cannot even shape the record. Only fragments of a
social problem are seen through the narrow windows of a litigation. Had we
innate or acquired understanding of a social problem in its entirety, we would
not have at our disposal adequate means for constructive solution. [FN69] *1454 McWhinney describes his third objection as
"a limitation of prestige." [FN70] The Court should
"avoid taking sides in the political conflicts of the age," McWhinney
asserts. [FN71] Otherwise, it would risk being embroiled in an
"undignified partisan controversy." [FN72] Moreover, he states
that that "as happened with the Old Court majority before 1937," the
Court could undermine its own legitimacy by "going down with a lost
political cause." [FN73] Finally, McWhinney
notes the oft-cited objection that judicial activism undermines the principle
of majority rule, imposing "the will of the 'nine old men' on the prime
representatives of the people, the legislature." [FN74] Put in language Justice Holmes might use, "a people
must make their own salvation and not expect it to be served up to them by the
is valuable legal scholarship. It revisits concepts already present in the
literature and takes these insights a step further, building a reasoned
argument against an activist approach to judging. It is a measured piece and an
invitation to scholarly dialogue. If Schlesinger introduced the term to the
public, McWhinney played a key role in bringing it into the academic mainstream.
Three years later,
McWhinney revised his views on the topic in an article called The Great Debate:
Activism and Self-Restraint and Current Dilemmas in Judicial Policy-Making. [FN76] It advances a more sophisticated theory of judicial
activism, [FN77] suggesting that broad, abstract notions of activism and
restraint are so oversimplified as to be practically useless. McWhinney came to
see that "the dichotomous classification of judicial philosophies favored
by American legal commentators in the late 1940's and early 1950's--judicial
activism versus judicial restraint--may not be a *1455 pure dichotomy at
all." [FN78] He posits that it would be more helpful to think of these
two categories as "different points on a continuum." [FN79]
In The Great
Debate, McWhinney offers a rubric for theorizing about judicial activism. He
argues that, by focusing on issues of "timing" and
"technique," Court-watchers can formulate meaningful profiles of each
Justice to describe when and how they employ judicial activism.
understands that broad labels are blunt tools that cannot encompass a judge's
entire jurisprudence: "An activist qua what?," he asks. "It is
not even enough to speak of a 'civil libertarian' activist. A judicial
attitude, such as Black's favoring the restriction of state action interfering
with speech-press liberties, may be activist qua speech but passivist qua the protections of states-rights and local
self-determination in a federal system." [FN80] Or, as some scholars
have written of justices on the Rehnquist Court, a judge might be activist qua
constitutional federalism and relatively passivist on social issues. [FN81] McWhinney's key insight is that terms like "judicial
activist" can be useful if they are employed with precision and explained
While this is
undoubtedly an improvement over Schlesinger's vague usage of the term,
McWhinney acknowledges that his approach is "clearly only the beginning of
wisdom in the analysis of Supreme Court jurisprudence in the United
States." [FN82] McWhinney analyzed, amended, and ultimately replaced a
basic conception of judicial activism. His new approach laid the groundwork for
future scholars, and stands as a valuable, if unrecognized, early contribution
to this difficult topic.
E. First Judicial Use of "Judicial Activism":
Judge Joseph C. Hutcheson, Jr.
While the exact
origins of the term "judicial activism" in legal scholarship are hard
to pin down with certainty, there is no question that Joseph C. Hutcheson, Jr.
was the first to use it in a judicial opinion. A hard but dedicated judge who
"barely missed out on an appointment to the Supreme Court which went to
Hugo Black," [FN83] Judge Hutcheson's
contributions to *1456 legal scholarship and service on the bench are
generally praiseworthy. [FN84] However, he started an unfortunate tradition in legal
opinion-writing that continues to this day.
tenure on the bench spanned over fifty years, from World War I to Vietnam.
While his judicial philosophy evolved over time, some of the enormous societal
and legal changes over these years proved too much for him. He was particularly
infamous for his strong disapproval of the National Labor Relations Board. [FN85] Although "not a segregationist per se,"
Hutcheson was hardly a strong proponent of civil rights cases like Brown v.
Board of Education [FN86] and generally
"opposed desegregation as a social policy." [FN87] And while he later regretted it, Hutcheson "succeeded
in side-tracking the appointment of [staunch desegregationist] J. Skelly Wright
to the Fifth Circuit." [FN88]
the first recorded use of the term "judicial activism" in an opinion
overruling a trial court decision by then-District Judge Skelly Wright. The
case was Theriot v. Mercer, [FN89] a "rather
bizarre" [FN90] tort action, "bolstered by an atmosphere of rumor and
intrigue" that "took on [a] cloak and dagger aspect of political
intrigue and scandal." [FN91] Mrs. Wanda Mercer
originally brought a wrongful death suit against Paris Theriot for allegedly
striking and killing Mercer's husband with his car. The only evidence to
support this was that the "decedent's body was found alongside the road on
the day following the time when defendant's vehicle and other vehicles passed the place where he was later found. . . ."
[FN92] After Judge Wright denied two motions for directed
verdict, a jury found Theriot guilty. On appeal, Judge Hutcheson wrote for a
unanimous panel that Mercer presented insufficient evidence to prove Theriot's
guilt. He held that several reversible errors during the trial tainted the
In the opinion's
penultimate paragraph, Judge Hutcheson used a footnote to condemn a strain of
Seventh Amendment jurisprudence discussed in a dissent in Galloway v. United
States [FN93] as a form of "judicial activism." In Galloway,
the Supreme Court held that the directed verdict was *1457
constitutional because the Seventh Amendment "was designed to preserve the
basic institution of jury trial in only its most fundamental elements, not the
great mass of procedural forms and details." [FN94] In that case, Justice Black penned a famous dissent,
lamenting the declining role of juries and arguing that trial judges should
only be able to order new trials. [FN95] In Theriot, neither
party questioned the judge's authority to direct a verdict, and Judge Hutcheson
admitted that there was no need to comment on the Galloway debate. [FN96] Nevertheless, he wrote:
however, we should say that in the controversy thus launched and still
continuing, we stand firm against the judicial activism back of the struggle
and the results it seeks to achieve, and, regarding as we do the guaranties of
the Seventh Amendment, as applicable to plaintiff and defendant alike, we cannot understand how
protagonists for the change can look upon the amendment, as apparently they do,
as intended for the benefit of plaintiffs alone and, so regarding it, as the
dissenters in the Galloway case apparently did, advocate doing away with or
limiting, beyond the ancient use, the control and guidance of the trial by an
informed and experienced judge. [FN97]
This footnote is
certainly dicta. It accuses three Supreme Court Justices (Black, Douglas, and Murphy) of being
activists, [FN98] yet it contains no specific argument against their
position other than an accusation that they are trying to change "ancient
landmarks." [FN99] The note also does not contain any citations directing the
reader to cases or scholarship in support of Hutcheson's position. Scholars
have written that Justice Black's views on the Seventh Amendment "have
ample logic in their support" [FN100] and that the
dissent is based on a "version of historical events [that] has been widely
accepted." [FN101] Justice Black's dissent has not carried the day, but his
interpretation of the Seventh Amendment is commendable for its grounding in
historical, legal, logical, and policy-related arguments. Judge Hutcheson may
have meant that Justice Black's position on the Seventh Amendment was
ahistorical, bad policy, or that it fell short on some other ground. Yet Judge
Hutcheson neither makes such a point, nor does the footnote itself *1458
add anything new or constructive to this debate. His use of the term "judicial activism" is more akin to name-calling
than reasoned argument.
This use of
"judicial activism" stands in contrast to the work of Schlesinger and
McWhinney. In hindsight, these two scholars may have used the term somewhat
imprecisely, but they used it to exchange ideas in a constructive manner. Judge
Hutcheson's parting shot in Theriot is not an invitation to reasoned debate.
Admittedly, judicial opinions are not essays or abstract legal scholarship; but
this use of "judicial activism" is simply unilluminating.
Months later, Judge
Hutcheson used the term once again, this time in a one-paragraph concurrence.
In Refinery Employees Union of Lake Charles Area v. Continental Oil Co., Judge
Wisdom held that judges, rather than arbitrators, have the power to determine
the scope of the arbitrability of issues enumerated in arbitration clauses. [FN102] He essentially limited the power of arbitrators to
unilaterally determine whether ambiguous or unspecified issues are arbitrable.
Judge John R. Brown
argued in his dissent that Judge Wisdom's opinion "is the same old effort to sugar-coat
what, to the judiciary, has long been a bitter pill--the idea that someone
other than a court can properly adjudicate disputes; that in the field of human
disputes lawyers and ex-lawyers as judges alone have the Keys to the
Kingdom." [FN103] Judge Brown supported this contention by questioning the
majority's reliance on precedent, looking to the consequences of its decision,
and disagreeing with the majority's implicit policy
issued this concurrence, defending the majority opinion:
ebullient enthusiasm of my younger brother as pioneer, teacher and guide in the
role of judicial activist, which he seems to have assumed, I venture to suggest
to him that before taking too seriously his role of leader in our court of an
activist movement to deride and destroy the ancient landmarks of the law, he
take a little time off to read and reflect upon these words from one of the
great English legal historians:
speculation about law and politics is an attractive pursuit. A small knowledge
of the rules of law, a sympathy with hardships which have been observed and a
little ingenuity, are sufficient to make a very pretty theory. It is a harder
task to become a master of Anglo-American law by using the history of that law
to discover the principles which underlie its rules, and to elucidate the
manner in which these principles have been developed and adapted to meet the
infinite complexities of life in different ages. Such students of our law will
learn even though at second hand, *1459 something of the practical
wisdom which comes from knowledge of affairs. They will for that reason be able
to suggest solutions of present problems which will depend not merely on their
own unaided genius, but on the accumulated wisdom of the past.' [FN104]
This opinion again
exemplifies the use of "judicial activism" without a clear definition. As in Theriot, Judge Hutcheson
provides no reasoned arguments to refute the position he criticizes. Judge
Brown utilizes many of the classic tools of legal argument, looking to the text
of the agreement itself, seeking to distinguish the precedent the majority
relies on, and advancing policy arguments. Meanwhile, if Judge Hutcheson has a
definition for "judicial activist" in mind for this concurrence, he
keeps it to himself. As in Theriot, he refers to "ancient landmarks"
of the law, likely indicating a historical or precedent-based argument. But
even a careful reader cannot discern how the relevant history or precedent
(whatever it might be) should have affected Judge Brown's reasoning or changed
his result. At best, this usage of "judicial activism" is ambiguous;
in all likelihood, it appears to be a form of name-calling, a barely
camouflaged way of saying "judge with whom I disagree."
F. Other Noteworthy Discussions of "Judicial
Activism" in Judicial Opinions
opinions were the first to mention "judicial activism," [FN105] but though many judges have invoked the term since, few
have examined it with any thoroughness. Of all federal opinions mentioning
"judicial activism," a mere eight of them use the term three times or
more, [FN106] while 227 cases mention it only once. Although this is not
a perfect proxy for the quality of discussion, it suggests the frequency with
which judges tend to label a view as activism without elaborating.
Some of the opinions that linger on the idea
of judicial activism are noteworthy in their own right. One extraordinary
exchange takes place in the 1978 Second Circuit decision, Turpin v. Mailet, [FN107] which holds that cities may be held liable in damages for
violations of the Fourteenth *1460 Amendment. [FN108] The case sounds much like Schlesinger's hypothetical
dialogue between the Champions of Self Restraint and the Judicial Activists. A
sharp dissent criticizes the majority for its conception of the judicial role.
justify their holding by stating that they are simply creating a
"[structure] for enforcement similar to those normally fashioned by
legislatures." They say that they are "[invigorating] the political
process," that they are indulging in "judicial rule-making"
which they liken to "legislative activity," and that they are thus
opening a "dialogue with Congress." [FN109] This critique is grounded in the separation of powers, and
an understanding of the role of Article III courts. The dissent argues that the
majority has stepped beyond its constitutional bounds by adopting the function
of a legislature. This argument would resonate with the Frankfurterian Champions
of Judicial Restraint, as Schlesinger portrayed them.
In defense of its
claim that the majority's position is inappropriate, the dissent undertakes a
brief reexamination of "the role that the federal judiciary was designed to play in our
democratic society." [FN110] Citing Blackstone's
Commentaries, a seventeenth century English case, a constitutional law
textbook, and other diverse sources, the dissent argues that "the
judiciary was to be precluded from participating in the legislative
process." [FN111] It then declares:
One need only
skim through the all too numerous Supreme Court dissents to recognize that on
occasion judicial activism has been checked with a very loose rein. Sometimes
this has pleased the so-called conservatives; at other times it has gratified
the so-called liberals. During the early decades of the twentieth century,
those who are today's staunchest supporters of judicial activism were the most
vocal critics of the Supreme Court's "usurpation" of congressional
powers in striking down social and welfare legislation. When the focus of the
judiciary swung from property rights to personal rights, a new and different
set of critics came to the fore. The issue, as these critics see it, is not one
of liberalism versus conservatism, but one of representative democratic
government versus judicial autocracy. [FN112] Expressing strong
disapproval for "constitutional common law," [FN113] which it sees as thinly veiled judicial legislation, [FN114] the dissent sees this case as an example of improper use
of the judicial role.
equally vehement (if more civil) concurrence attempts to refute several points raised by the dissent,
emphasizes that "[j]udges should consider the economic and social
consequences of their decisions and should gauge the wisdom of their acts by
the results which are likely to ensue." . . . I agree wholeheartedly. Of
course, by this the dissent admits that value judgments do ultimately, and
especially in hard cases, play a role, even in constitutional adjudication. I
wonder how that admission squares with the dissent's purported eschewing of
"judicial activism," "judicial legislation" and "judicial
autocracy." In the end, it is the dissent's value judgment based upon
"economic and social consequences" including "incalculable
liability" that prompts the dissent to decide as it does. Different value
judgments motivate the majority to decide a different way. I believe the
dissent is entitled to its judgment without pejoratives. I regret that the
dissent does not play by the same rules. [FN115] The majority takes
its cue from the Black-Douglas side of the debate in Schlesinger's article. It
points out that policy judgments are inherently part of legal decisions, and
therefore that judges ought to choose the result that makes the most sense.
majority sees the dissent's charge of "judicial activism" as
essentially a pejorative, the exchange in Turpin moves beyond mere
name-calling. The dissent makes a reasoned argument from diverse authorities,
explaining why the majority should have left the decision in the case to democratically elected and accountable
legislatures. The majority responds by finding common ground and explaining
that each side's approach is not much different from the other's. Despite the
heated nature of the exchange, these opinions are encouraging examples of
debate over "judicial activism" from the United States Reports.
A 1999 Fourth
Circuit concurrence by Chief Judge J. Harvie Wilkinson III adopts and expands
upon many of the themes discussed in Turpin. The case, Brzonkala v. Virginia
Polytechnic Institute and State University, [FN116] invalidated a
portion of the Violence Against Women Act as exceeding "Congress' [s]
power under both the Commerce Clause of Article I, Section 8, and the
Enforcement Clause of Section 5 of the Fourteenth Amendment." [FN117] Judge Wilkinson concurs, [FN118] admitting that "it is a grave judicial act to nullify
a product of the democratic process," [FN119] but concludes that
this case merits such an act.
Wilkinson's concurrence suggests that judicial activism is alive and well in
the United States. In the twentieth century, he explains, it "falls into
three general stages." [FN120] The first stage was
the Lochner era, "beginning roughly with the decision in Lochner v. New
York, [FN121] and continuing through the early New Deal," which
"is still widely disparaged for its mobilization of personal judicial
preference in opposition to state and federal social welfare legislation."
[FN122] The second stage took place during the "Warren and Early Burger
Courts," roughly the 1950s through the early 1970s, which "focused on
finding new substantive rights in the Constitution and down played that
document's structural mandates." [FN123] As Judge Wilkinson
sees it, "Although many of its individual decisions were overdue and
salutary, when the era is considered as a whole, the states were relegated to a
second-class constitutional status." [FN124] Finally, the third
stage of judicial activism "probably began with New York v. United
States," [FN125] and continues into the twenty-first century. [FN126]
thread of contemporary activism," Judge Wilkinson explains, "is an
interest in reviving the structural guarantees of dual sovereignty." [FN127] The specific examples of this federalism revival are
familiar to any observer of the Rehnquist Court, and have generated a great
deal of commentary. They include cases limiting Congress's power under the
Commerce Clause, [FN128] cases restricting
the ability of one branch of government to "commandeer" the
instrumentalities of another, [FN129] cases cabining
Congress's "enforcement power" under section five of the Fourteenth
Amendment, [FN130] and an array of cases expanding or affirming the scope of
the Eleventh Amendment. [FN131]
In Brzonkala and
elsewhere, Judge Wilkinson uses this historical analysis of judicial activism
to defend the Rehnquist Court's "New *1463 Federalism" cases. [FN132] He points out that federalism is an important
constitutional value, one that had been
forgotten during the second stage of judicial activism, where "the
doctrine of dual sovereignty had precious little place." [FN133] He argues that the third stage of judicial activism
"is not a plunge off the constitutional cliff," but rather "a
modest and necessary corrective," in which the Court approaches cases as
"a structural referee, not an ideological combatant." [FN134] It does not pose any threat to the "binding effect of
the Bill of Rights upon the states, or to the constitutional underpinnings of
our most basic national civil rights statutes." [FN135] This analysis of judicial activism as an historical
concept is commendable, whether or not one agrees with Wilkinson's ultimate
conclusion, because it employs reasoned, civil argument in order to advocate
for a position. It invites constructive dialogue about the Rehnquist Court's
place in history, and the nature and justification of its "New Federalism"
Brzonkala illustrate that the concept of judicial activism can prompt
discussion of important jurisprudential issues. But if speakers fail to define
their terms with precision, initially promising exchanges may lack depth and
clarity. The second half of this Comment
seeks to reduce potential confusion by enumerating five definitions of
"judicial activism" that appear in scholarly discussions and Supreme
Court opinions. The Comment also alerts
readers to subsidiary questions that arise when one carefully considers each
II Definitions of Judicial Activism
A. Striking Down Arguably Constitutional Actions of Other
often describe judicial invalidation of legislative enactment as "judicial
activism." As one scholar has written, "At the broadest level,
judicial activism is any occasion where a court intervenes and strikes down a
piece of duly enacted legislation." [FN136] Cass Sunstein
appears to have endorsed this view, penning an editorial in the New York Times
that claims, "Conservative courts that embrace judicial activism will be
just as likely to strike down legislation that has received bipartisan approval
as legislation supported by liberals." [FN137] He supports this
assertion by pointing, as *1464 Court-watchers often do, [FN138] to the number of state and federal laws the Court has
recently invalidated. [FN139]
however, reveals little about the propriety of individual decisions. The mere
fact that the Court has struck down more laws in recent years does not
automatically render the individual decisions suspect. [FN140] Imagine, for example, that Congress somehow passed a
bipartisan statute that established a national religion. If the Court
invalidated this clearly unconstitutional law, no one would suggest that it had
engaged in judicial activism. "Judicial activism" cannot be synonymous
with merely exercising judicial review. [FN141]
Sunstein recognizes the need for a more
limiting principle and refines his definition to include only the invalidation
of statutes that are arguably constitutional. He notes that "the
Constitution contains ambiguities," and "[r]easonable people have
opposed campaign finance regulation, gun control, affirmative action and restrictions
on advertising. But it is a stretch to think that the Constitution, fairly
interpreted, opposes all of these things, too." [FN142] Thus, Sunstein's view is actually close to the definition provided
by Professor Lino Graglia: "By judicial activism I mean, quite simply and
specifically, the practice by judges of disallowing policy choices by other
governmental officials or institutions that the Constitution does not clearly
prohibit." [FN143] In other words, the Court is engaging in judicial activism
when *1465 it reaches beyond the clear mandates of the Constitution to
restrict the handiwork of the other government branches. [FN144]
Frankfurterian model portrayed by Schlesinger, this definition rests on respect
for the separation of powers. Yet Professor Sunstein takes it in a markedly
different direction, describing the Court's "New Federalism"
jurisprudence as activist. [FN145]
dissenting in United States v. Lopez, [FN146] offered one version
of this emergent criticism of judicial activism, arguing that the Court's
"overriding [of] congressional policy choices under the Commerce
Clause" has historically been unsuccessful for two reasons. [FN147] "[N]othing in the
Clause compelled the judicial activism, and nothing about the judiciary as an
institution made it a superior source of policy on the subject Congress dealt
with. There is no reason to expect the lesson would be different another
time." [FN148] Under the Sunstein/Graglia definition, this is judicial
activism, but only if one accepts Justice Souter's view that the Commerce
Clause itself does not clearly prohibit the Gun-Free School Zones Act of 1990.
As Professor Sunstein might say, the point is at least arguable, and since that
is so, the Court is encroaching upon territory not clearly reserved to it.
One difficulty with
this version of judicial activism is that it rests on a highly debatable
conception of the role of the Supreme Court. Marbury v. Madison's famous dictum
[FN149] contains no proviso excepting all close or debatable
cases. In fact, the Court might appear to be abdicating its duty to interpret
the Constitution if it consistently punted on hard questions. While scholars
such as Larry Kramer [FN150] and Mark Tushnet [FN151] argue that the Court should not be the final expositor of
the Constitution for all branches of government, the vast majority of legal
scholars [FN152] argue with equal vehemence that the Constitution (as
interpreted by Marbury) says what it *1466 appears to say: the Supreme
Court can and should declare what the law is, even in difficult or politically
This view of
judicial activism has another, more practical flaw: the line between proper judicial review and judicial
activism depends on the speaker's understanding of the Constitution. Recall
that Professor Graglia's definition requires agreement on what the Constitution
"does not clearly prohibit." [FN153] Thus, this
definition of judicial activism depends on the speaker's view of whether the
Constitution has expressly prohibited policy choices in any given area of the
law--even relatively unsettled areas such as abortion, affirmative action, and
the right to bear arms, to name a few. The subjective quality of this
definition means that discussions of this kind of judicial activism will
quickly evolve into debates over constitutional meaning. These discussions are worthwhile, to be sure,
but they are unlikely to result in easy answers.
B. Ignoring Precedent
admonish their colleagues for judicial activism when they contravene precedent,
but the concept is not as simple as it may first appear. When using
"judicial activism" to describe the process of ignoring or
disregarding precedent, two important distinctions must be made, both of which
are related to the source of the precedent. One distinction depends on whether
the precedent is vertical or horizontal, and the other depends on whether the
precedent is a matter of constitutional, statutory, or common law.
1. Vertical versus
Some instances of disregarding precedent are
almost universally considered inappropriate. For example, in a rare showing of
unity in a Supreme Court opinion discussing judicial activism, [FN154] Justice Stevens wrote that a circuit court "engaged
in an indefensible brand of judicial activism" when it "refused to
follow" a "controlling precedent" of the Supreme Court. [FN155] The rule that lower courts should abide by controlling
precedent, sometimes called "vertical precedent," [FN156] can safely be called *1467 settled law. [FN157] It appears to be equally well accepted that the act of
disregarding vertical precedent qualifies as one kind of judicial activism.
precedent," the doctrine requiring a court "to follow its own prior
decisions in similar cases," [FN158] is a more
complicated and debatable matter. Many judges have deemed activist the failure
to adhere to horizontal precedent. [FN159] For example,
Justice Brennan, dissenting in Engle v. Issac, [FN160] labeled the majority's treatment of a habeas corpus case a
"conspicuous exercise in judicial activism--particularly so since it takes
the form of disregard of precedent scarcely a month old." [FN161] Likewise, a dissent by Justice Stevens in one of the
Court's recent Eleventh Amendment cases mentions several reasons why he
believes the majority in Kimel v. Florida Board of Regents to be mistaken. [FN162] Chief among these is that, "by its own repeated
overruling of earlier precedent, the majority has itself discounted the
importance of stare decisis in this area of the law." [FN163] This "kind of
judicial activism," Justice Stevens explains, is "such a radical
departure from the proper role of this Court that it should be opposed whenever
the opportunity arises." [FN164]
argue that it is sometimes proper to disregard horizontal precedent. Professor
Gary Lawson, for example, has argued that stare decisis itself may be
unconstitutional if it requires the Court to adhere to an erroneous reading of
the Constitution. [FN165] "If the
Constitution says X and a prior judicial decision says Y, a court has not
merely the power, but the obligation, to prefer the Constitution." [FN166] In the same vein, Professors Ahkil Amar and Vikram Amar [FN167] have stated, "Our general view is that the *1468
Rehnquist Court's articulated theory of stare decisis tends to improperly
elevate judicial doctrine over the Constitution itself. It does so, they argue,
by requiring excessive deference to past decisions that themselves may have
been misinterpretations of the law of the land." [FN168] For Lawson, Akhil Amar, and Vikram Amar, dismissing
erroneous horizontal precedent would not be judicial activism; instead, it
would be appropriate constitutional decisionmaking.
Courts agree with
scholars that horizontal precedent can be disregarded in some instances as
shown by the opinions in Planned Parenthood v. Casey [FN169] and Lawrence v. Texas. [FN170] The Court in Casey
observes that "stare decisis is not an 'inexorable command"' and
suggests a list of factors for when
overruling constitutional precedents might be appropriate. [FN171] Justice O'Connor's factors are helpful, but they seem to
invite nearly as many questions as they answer. [FN172] Casey also reveals deep divisions among the justices over
how to treat constitutional precedents. [FN173]
Casey is further
complicated by Lawrence v. Texas, [FN174] where Justice
Kennedy recasts the four-factor Casey test as a single inquiry into reliance
interests. [FN175] As Justice Scalia explains in his dissent, the Lawrence
majority "do[es] not bother to distinguish--or indeed, even bother to
mention--the paean to stare decisis coauthored by three Members of today's
majority in *1469 Planned Parenthood v. Casey." [FN176] Based on this recent fluctuation in the Court's doctrine
regarding horizontal precedent, it seems the Court does not have a settled
theory on the matter.
What, then, can one
make of a claim that a decision represents judicial activism because it
overrules horizontal precedent? Like the first definition of judicial activism
described above, these charges rest on complex assumptions about the law that
is overruled and the underlying constitutional provisions that may justify
disregarding the precedent. Despite these difficulties, judges and scholars
commonly identify disregard of horizontal precedent as judicial activism.
versus Statutory versus Common Law Precedents
"judicial activism" as disregarding precedent must be considered in light of the fact that courts treat
different kinds of law differently. As William Eskridge, Jr. has observed, the
Supreme Court has created a "three-tiered hierarchy of stare
The Supreme Court
affords deference to common law precedents because it feels that lower courts
are in a better position to change the law. [FN178] By contrast, lower
courts--especially state courts--generally accept their role as caretakers of
the common law, and are therefore willing to help it evolve over time. [FN179] As one scholar has suggested, common law judges are
"akin to lawmakers," and "overturning a case is not much
different than a legislature repealing or mooting a statute with a subsequent
precedents, meanwhile, are entitled to less deference "because the difficulty of amending the
Constitution makes the Court the only effective resort for changing obsolete
constitutional doctrine." [FN181] Even though
reliance interests may counsel otherwise, [FN182] constitutional
decisions are given a relatively small amount of deference.
precedents, on the other hand, "often enjoy a super-strong presumption of
correctness." [FN183] Courts reason that
once they construe a statute, their interpretation becomes part of the statute
itself, so that "overruling the earlier opinion is almost like repealing
and rewriting the *1470 statute, which is something that only the
legislature is supposed to do." [FN184] Though Professor
Eskridge is critical of this approach, [FN185] he acknowledges that it remains the prevailing wisdom. [FN186]
Thus, common law,
constitutional, and statutory precedents are not treated the same. But the
matter becomes further complicated because at times, both constitutional law
and statutory provisions tend to look like common law. As Judge Posner
explains, "Some statutes, indeed, are so general that they merely provide
an initial impetus to the creation of frankly judge-made law (as in antitrust)
. . . ." [FN187] In these circumstances, a technically statutory provision
becomes essentially a body of common law. "Furthermore," Judge Posner
notes, "the decline of pure common law has been matched by the rise of a
style of constitutional law that is ever less anchored in the constitutional
text, and therefore ever more like common law." [FN188] These developments mean that critics must adapt their
analysis of different types of law based not only on what the law is, but how
between type and function of law gave rise to a disagreement in Alexander v.
Sandoval, [FN189] which involved a dispute over whether individuals have a
private right of action to sue to enforce disparate impact regulations
promulgated under Title VI of the Civil Rights Act of 1964. [FN190] Justice Scalia argued for the majority that a
purpose-based judicial search for a private right of action represented a style
of reasoning more appropriate for common law cases. [FN191] In his dissent, Justice Stevens took issue with this
characterization. "As the majority narrates our implied right of action jurisprudence, the Court's
shift to a more skeptical approach represents the rejection of a common-law
judicial activism in favor of a principled recognition of the limited role of a
contemporary 'federal tribunal."' [FN192] Justice Stevens
argued that he, rather than the majority, was being faithful to Congress's
intent. [FN193] Nevertheless, at least from the *1471 majority's
perspective, the Court could not agree on the proper style of judicial reasoning
to apply to the statutory scheme.
suggest that even one of the most uncontroversial definitions of judicial
activism requires reaching deeper into jurisprudential concepts than one might
first expect. Adherence to precedent is surely a virtue in most cases, but it
is helpful to tease out precisely which kind of precedent--and what kind of
law--is at issue. Only then can one make a constructive point about
"judicial activism" as disregarding precedent.
C. Judicial Legislation
Judges are labeled
judicial activists when they "legislate from the bench." President
George W. Bush has invoked this meaning, saying that he plans "to appoint
strict constructionists who would hew closely to the law rather than judicial
activists whom he said were prone to 'legislate from the bench.' 'We want
people to interpret the law, not try to make law and write law,' he said."
This usage has also surfaced in several
Supreme Court opinions. In Florida v. Wells, [FN195] a case involving
the Fourth Amendment, Justice Stevens wrote in dissent, "It is a proper part
of the judicial function to make law as a necessary by-product of the process
of deciding actual cases and controversies. But to reach out so blatantly and
unnecessarily to make new law in a case of this kind is unabashed judicial
expressed a similar sentiment in a 1974 copyright case. [FN197] There, the majority
found that defendants who intercepted broadcast transmissions of copyrighted
material and sent the content to paying subscribers were not guilty of
copyright infringement. Justice Douglas began his dissent by writing, "The
Court today makes an extraordinary excursion into the legislative field." [FN198] The majority's result, he believed, "may or may not
be desirable public policy. But it is a legislative decision that not even a
rampant judicial activism should entertain." [FN199] Justice Douglas's objection to the Court's decision is
rooted in the separation of powers. He feels that the judiciary should not
perform a role assigned to the legislature. [FN200]
Justice Powell used the term in a similar manner in the school desegregation
case Columbus Board of Education v. Penick. [FN201] He admitted that
"there is reason to believe that some legislative bodies have welcomed
judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect
of others confronting it seems inviting." [FN202] Nevertheless, he argued, "[t]he time has come for a
thoughtful re-examination of the proper limits of the role of courts in
confronting the intractable problems of public education in our complex
society." [FN203] Justice Powell was troubled by the institutional
difficulties that accompany judicial supervision and enforcement of
"wide-ranging decrees." [FN204] He expressed
concern that "[l]ocal and state legislative and administrative
authorities," which are better designed and equipped to handle such
issues, "ha[d] been supplanted or relegated to initiative-stifling roles
as minions of the courts." [FN205]
essentially saw the courts as doing the work of local and state legislatures.
While recognizing that this may be convenient and salutary in some
circumstances, he concluded with one of the most forceful arguments against
this form of judicial activism. "Courts are the branch least competent to
provide long-range solutions acceptable to the public and most conducive to
achieving both diversity in the classroom and quality education." [FN206] In short, courts are less competent policy-making bodies
than the legislature. [FN207]
Some criticisms of
the Warren Court's jurisprudence as "judicial activism" amount to a
concern that it is a form of judicial legislation. Justice Black expressed this
view in dissent in United States v. Wade, [FN208] a case about the
right to counsel during a post-indictment lineup. Justice Black argued that the
Court's proposed remedy--a new trial unless the government could show that
introducing the evidence was harmless error--was far too strong. In the
first-ever Supreme Court use of the term "judicial activism," Justice
Black wrote that if he followed the majority, he "would feel that we are
deciding what the Constitution is, not from what it says, but from what we
think it would have been wise for the Framers to put in it. That to me would be
'judicial activism' at its worst." [FN209] From Justice
Black's perspective, the majority was acting as a mini-legislature *1473
by reading rights into the Due Process Clause where he believed they did not
Critics of the
Warren Court have often voiced Justice Black's concerns. [FN210] Even admirers of
the Warren Court concede that it was activist in this sense. As Gary Schwartz
put it, "In its constitutional rulings, the Warren Court was the paradigm
of judicial activism." [FN211] However, many of
the Warren Court decisions most often labeled as judicial activism have gained
acceptance. For example, Miranda v. Arizona, [FN212] which created a
mandatory warning that police must give to all suspects upon arrest, [FN213] is generally accepted by the public and the police, [FN214] a fact cited in its reaffirmation by the Supreme Court
itself in United States v. Dickerson. [FN215]
Cases like Miranda
serve as reminders that whether a case is "activist" may not explain whether or not it is a good
decision, when one's definition of "good" is based on other criteria.
Individual cases can result in favorable consequences or set desirable precedents
despite being improper exercises of the judicial function. Thus, one problem with using "judicial
activism" as a pejorative, as critics of the Warren Court often do, is
that it confuses the issues. Using
"activist" as a substitute for "bad" elides important
differences between the two labels; it fails to elucidate the specific ways in
which a judicial opinion is improper, harmful, or wrong.
D. Departures from Accepted Interpretive Methodology
While canons of
interpretation have long been criticized as unhelpful or conclusory, [FN216] the failure to use the "tools" of the trade
appropriately--or not at all--can be labeled "judicial activism." [FN217] Accusations of this form of judicial activism are common,
but divergences of opinion over what constitutes an appropriate interpretative
tool make it difficult to *1474 distinguish principled but unorthodox methodologies
from "activist" interpretation.
hypothetical constitutional case. An originalist like Justice Thomas [FN218] might begin and end with a single question: Was the
practice in question acceptable at the time the constitutional provision was
ratified? Justice Scalia employs a variant of this approach. He has defined judicial activism as "including 'decisions
that hold unconstitutional practices that were not only approved at the
founding but that were continuously viewed as constitutional by at least a
substantial portion of the American people,' down to the present day." [FN219] In contrast, a more pragmatic judge like Justice Breyer
might appeal to a broader range of interpretive tools in a constitutional
dispute. [FN220] Akhil Reed Amar has suggested that the "basic
building blocks of conventional constitutional argument" [FN221] include "[t]ext, history, structure, prudence, and
doctrine." [FN222] Conceivably, a more pragmatic Justice might deem
"activist" any constitutional decision made without careful
consideration of these forms of argument. The difficulty is immediately
apparent. Although there is some baseline of consensus, scholars and jurists do
not agree on what constitutes the "appropriate" way to interpret the
Constitution. Accordingly, they will remain in disagreement over a charge of
judicial activism in this context. [FN223]
The difficulty in
applying established canons of interpretation is evident in non-constitutional
cases as well. For example, in statutory interpretation cases, textualists [FN224] might be deemed judicial activists for refusing to
consider legislative history or statutory purpose. Justice Stevens expressed
this sort of dissatisfaction with his colleagues in Wards Cove Packing Co.,
Inc. v. Atonio, [FN225] an employment discrimination case. In his dissent, he
wrote, "[t]urning a blind eye to the meaning and purpose of Title VII, the
*1475 majority's opinion
perfunctorily rejects a longstanding rule of law and underestimates the
probative value of evidence of a racially stratified work force. I cannot join
this latest sojourn into judicial activism." [FN226]
To be sure, Justice
Stevens's charge of "judicial activism" in Ward's Cove has a number
of dimensions, including a charge of disregarding precedent. But also present
is the charge that the Wards Cove majority did not properly weigh or
acknowledge the "meaning and purpose of Title VII." At least some
justices in the majority would readily admit, as a matter of interpretive
approach, that they would give little or no weight to the "purpose"
of a statute if they considered its text to be unambiguous. Thus, Justice
Stevens could be seen as labeling this approach to statutory interpretation
"activist." While it is undoubtedly his prerogative to do so, the
exchange between Justice Stevens and the majority illustrates a way in which
the label of "judicial activism" can obscure deeper issues: labeling
one interpretive methodology "activist" does not illuminate the
underlying dispute or serve as a constructive argument against one interpretive
methodology or another.
these difficulties, judges often find much to agree on in their respective
methodologies, at least outside the constitutional context. Yet, even those who
agree on the judicial canons of interpretation can disagree over the result of
a particular case. This happened when Alberto Gonzales, as a Justice of the Supreme Court of Texas,
condemned fellow Justice Priscilla Owen's interpretation of a statute as
"an unconscionable act of judicial activism." [FN227] Gonzales contended that Owen disregarded the text and
legislative history of Texas's Parental Notification Act in order to reach her
conclusion. Although Owen agreed that the text and history of a statute are the
touchstones of statutory interpretation, she came to a different conclusion.
Therefore, one reading of Gonzales's statement is that Owen employed these
tools of statutory interpretation improperly.
As shown above,
"judicial activism" can have at least two different meanings within
this definition. First, as in Wards Cove, it can mean that a judge uses
different (in kind or number) tools to make a decision, compared to what
another judge would have used. This can occur because a judge makes a mistake,
or because her judicial philosophy requires that she not avail herself of
certain interpretive guides. Second, and more usefully, it can mean that two
people agree on what tools should be used to make a decision, but disagree on
how to apply the tools in a particular case.
E. Result-Oriented Judging
This species of
judicial activism differs in kind from the previous four because it has a
scienter element. Ninth Circuit Judge Diarmuid *1476 O'Scannlain defines
it as follows: "Judicial activism means not the mere failure to defer to political branches or
to vindicate norms of predictability and uniformity; it means only the failure
to do so in order to advance another, unofficial objective." [FN228] In other words, a decision is "activist" only
when (a) the judge has an ulterior motive for making the ruling; and (b) the
decision departs from some "baseline" of correctness. [FN229] How "activist" the decision is depends on how
far it deviates from this baseline.
This definition is attractive
in the abstract, but as Judge O'Scannlain notes, "Judicial activism is not
always easily detected, because the critical elements of judicial activism
either are subjective or defy clear and concrete definition." [FN230] There is rarely smoking gun evidence of an ulterior
motive, and it can be exceedingly difficult to "establish a
non-controversial benchmark by which to evaluate how far from the 'correct'
decision the supposedly activist judge has strayed." [FN231] Nevertheless, this definition seems particularly useful,
if only because the scienter element limits the universe of
"activist" decisions more than any of the preceding definitions.
sections demonstrate that judicial activism is not a monolithic concept.
Rather, it can represent a number of distinct jurisprudential
ideas that are worthy of further investigation. For example, when scholars
suggest that striking down arguably constitutional actions of other branches is
judicial activism, they invite debate over the age-old questions of how one can
best interpret the Constitution, and what should be the proper scope of
judicial review in our tripartite system of government. Similarly, a charge of
judicial activism as disregarding precedent raises complex issues about the
nature of a judicial holding, and the amount of deference owed to different
types of precedent. Indeed, each of the definitions discussed in Part II
invites subsidiary questions that are as important as they are difficult to
moments in the history of judicial activism profiled in Part I of this Comment
add depth and texture to these definitions by showing how the term was
originally used. Arthur Schlesinger's insightful and thought-provoking profile
of the 1947 Supreme Court used the term "judicial activism" to convey
fundamental ideas about law, politics, and the judicial role to a generalist
audience. Edward McWhinney continued Schlesinger's tradition within legal
academia, successfully treating judicial activism as a serious topic worthy of
In spite of these
early examples, many will find Judge Hutcheson's imprecise and
less-than-constructive invocations of the term to be the modern norm. They
would agree with Judge Easterbrook's observation that the label of
"judicial activism" is often akin
to name-calling, a shorthand for "Judges Behaving Badly." [FN232] They will sympathize with Professor Randy Barnett's view
that the term, "while clearly pejorative, is generally empty." [FN233]
Justice Scalia has
voiced a version of this criticism. During oral arguments for Republican Party
of Minnesota v. Kelly, [FN234] he claimed that
calling oneself a strict constructionist while criticizing others for being
judicial activists "doesn't mean anything. It doesn't say whether you're
going to adopt the incorporation doctrine, whether you believe in substantive
due process. It's totally imprecise. It's just nothing but fluff." [FN235]
To a point, Justice
Scalia is right. Today, a charge of "judicial activism" standing
alone means little or nothing because the term has acquired so many distinct
and even contradictory meanings. Nevertheless, when explained carefully, the
term can be a starting point for meaningful conversation about the judicial
craft, an opportunity to ask the subsidiary questions that go beyond the
superficial. This Comment is an invitation to do just that.
[FNd1]. J.D., School of Law, University of California, Berkeley
(Boalt Hall), May 2004; law clerk for the Honorable Samuel A. Alito, Jr. I wish to thank my family (especially my
father) for its love and support; my Boalt professors (especially Vik Amar, Jesse
Choper, Harry Scheiber, Robert Merges, and Donna Petrine) for giving an eager
mind much to ponder; and my friends and colleagues
at the California Law Review (especially my fellow Articles Editors) for their
dedication, enthusiasm, and kindness.
[FN1]. Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial
Activism?, 73 U. Colo. L. Rev. 1401, 1401 (2002) (internal quotations omitted).
[FN2]. See, e.g., Sterling Harwood, Judicial Activism: A
Restrained Defense (1996); Fredrick P.
Lewis, The Context of Judicial Activism: The Endurance of The Warren Court
Legacy in a Conservative Age (1999); see also Arthur S. Miller, For Judicial
Activism, N.Y. Times, Nov. 11, 1979, at E21. For a clever recent twist on
advocacy of judicial activism, see Stephen F. Smith, Activism as Restraint: Lessons from Criminal
Procedure, 80 Tex. L. Rev. 1057 (2002).
[FN3]. In a short article, Justice John Paul Stevens describes a
series of cases commonly viewed as "activist," and concludes,
"[b]ecause I did not participate in any of the foregoing cases, I cannot
be entirely sure about how I would have voted, but with the benefit of
hindsight I can say that I now agree with each of those examples of judicial
activism." John Paul Stevens, Judicial Activism: Ensuring the Powers and
Freedoms Conceived by the Framers for
Today's World, C.B.A. Rec., Oct. 16, 2002, at 26.
[FN4]. Throughout this Comment, references to the term
"judicial activism" will include the term in its personified form,
"judicial activist," and its plural form, "judicial
activists." Similar terms, like "Lochnerization," "spurious
interpretation," and "judicial legislation," are only addressed
insofar as they are related to discussions of judicial activism. See, e.g.,
infra Part I.A.
[FN5]. Westlaw search ["judicial activist"
"judicial activism" "judicial activists" & DA(AFT)
12/31/1989 & BEF 1/1/2000] in "Journals and Law Reviews"
database, performed by author on August 19, 2004.
[FN6]. Westlaw search ["judicial activist"
"judicial activism" "judicial activists" & DA(AFT)
12/31/1999 & BEF 1/1/2004] in "Journals and Law Reviews"
database, performed by author on August 19, 2004.
[FN7]. The term appeared in judicial opinions only twice in the
1950s and fourteen times in the 1960s, while judges found occasion to invoke it
262 times during the 1990s.
[FN8]. In the past decade
(from August 1994 to August 2004), "judicial activism" and its
cognates have appeared 163 times in the Washington Post, and another 135 times
in the New York Times. Lexis search ["judicial activism" or
"judicial activist" or "judicial activists" and date(geq
(7/31/1994) and leq (8/1/2004))] in "Washington Post" and "New
York Times" databases, respectively, performed by author on Aug. 19, 2004.
[FN9]. A blog is a Web page consisting of chronological,
frequently updated posts. It resembles an online journal. Many blogs focus on a
specific subject such as appellate law, criminal procedure, or Supreme Court
cases. To see an example of the remarkable abilities of "bloggers" to
comment quickly and intelligently on current issues, consult the November 15,
2002 blog post labeled "Judicial Activism Revisited" at http://
www.jeffcoop.com/blog/archives/2002_11.html (last visited Aug. 19, 2004)
(describing, commenting on, and providing links to an explosion of commentary
on judicial activism within a single week across the Internet, triggered by a
single editorial in the New York Times).
[FN10]. J.D. Hyman, Segregation and the Fourteenth Amendment, 4
Vand. L. Rev. 555, 555 (1950).
[FN11]. Assoc. Indus. of N.Y. State, Inc. v. U.S. Dep't of
Labor, 487 F.2d 342, 354 (2d Cir. 1973).
[FN12]. See, e.g., Randy E. Barnett, Is the Rehnquist Court an "Activist" Court? The
Commerce Clause Cases, 73 U. Colo. L. Rev. 1275, 1275-76 (2002); cf. Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982).
[FN13]. For an excellent sketch of judicial critiques throughout
the Twentieth Century, see Michael Gerhardt, The Rhetoric of Judicial Critique: From Judicial Restraint
to the Virtual Bill of Rights, 10 Wm. & Mary Bill Rts. J. 585 (2002).
[FN14]. See, e.g., Ezra R. Thayer, Judicial Legislation: Its
Legitimate Function in the Growth of the Common Law, 5 Harv. L. Rev. 172 (1891)
(describing "judicial legislation" as "the growth of the law at
the hands of judges ...."). It should be noted that many of these
discussions define "judicial legislation" in similarly vague terms.
[FN15]. Brian Bix, Positively Positivism, 85 Va. L. Rev. 889, 907
n.108 (1999) (book review) (quoting Richard A. Cosgrove, Scholars of
the Law: English Jurisprudence from Blackstone to Hart 56-57 (1996)).
[FN16]. For a discussion of
Austin's views on judicial legislation and their various misinterpretations
over the years, see W. L. Morrison, Some Myth About Positivism, 68 Yale L.J.
212, 214 (1958) ("The whole of [Austin's] Lecture XXXVIII seeks to
demonstrate that some common objections to judicial legislation are
[FN17]. See, e.g., Benjamin N. Cardozo, The Nature of the
Judicial Process (1921) (describing how
judges "make" law). Compare Kent Greenawalt, Discretion and Judicial
Decision: The Elusive Quest for the Fetters that Bind Judges, 75 Colum. L. Rev.
359 (1975) ("[Cardozo's] characteristically eloquent formulation of the
thesis that judges 'legislate' reflects its widespread acceptance among
jurisprudential writers of his time ...."), with Legislation, 43 Harv. L.
Rev. 1302, 1304 (1930) (quoting Roscoe Pound, Spurious Interpretation, 7 Colum.
L. Rev. 379 (1907), for the proposition that "[e]xtensive exercise of the
powers of judicial legislation is frowned upon by the bar ....").
[FN18]. See Lochner v. New York, 198 U.S. 45 (1905).
[FN19]. See generally William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the
Courts, 1890-1937 (1994).
[FN20]. See, e.g., James W. Ely, Jr., Economic Due Process Revisited, 44 Vand. L. Rev. 213,
213-14 (1991) (book review); Cass
R. Sunstein, Lochner's Legacy, 87 Colum. L. Rev. 873, 874 (1987) ("The received wisdom is that Lochner was wrong
because it involved 'judicial activism': an illegitimate intrusion by the
courts into a realm properly reserved to the political branches of
government."). Judges regularly invoke Lochner as a way of criticizing their
colleagues' opinions. See, e.g., Coll. Sav. Bank v. Fla. Prepaid Post Secondary Educ.
Expense Bd., 527 U.S. 666, 690 (1999);
Seminole Tribe v. Florida, 517 U.S. 44, 166 (1996) (Souter, J., dissenting); United States v. Lopez, 514 U.S. 549, 601 n.9 (1995) (Thomas, J., concurring); Dolan v. City of Tigard, 512 U.S. 374, 406-09 (1994) (Stevens, J., dissenting); TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443,
455 (1993) (Stevens, J.) (plurality
opinion); Planned Parenthood v. Casey, 505 U.S. 833, 959-61
(1992) (Rehnquist, C.J.,
[FN21]. Substantial research by the author has failed to produce
any earlier references to "judicial activism." While proof by
induction is hardly foolproof, at least one other authority attributes the term
"judicial activism" to Schlesinger. See Albon P. Man, Jr., Mr.
Justice Murphy and the Supreme Court, 36 Va.
L. Rev. 889, 890, 916 (1950).
[FN22]. Arthur M. Schlesinger, Jr., The Supreme Court: 1947,
Fortune, Jan. 1947, at 202, 208. Regardless of whether Schlesinger's article
was actually first to use the term, it is indisputably a seminal piece. Many of
the other early scholarly articles that use the term directly cite the
Schlesinger article. See, e.g., Abraham S. Goldstein, Eugene v. Rostow as Dean: 1955- 1965, 94 Yale L.J.
1323, 1323 (1985); Note, Mr.
Justice Reed--Swing Man or Not?, 1 Stan. L. Rev. 714, 718 (1949); Note,
Negligence--Res Ipsa Loquitur-- Application to Master-Servant Relationship When
Fellow-Servant Rule Abolished, 1 Vand. L. Rev. 662, 664 n.13 (1948). Another
oft-cited early work that mentions "judicial activism" is C. Herman
Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values
1937-1947 (1948). Pritchett's book repeatedly mentions "judicial activism,"
but always with a citation to Schlesinger's article. See id. at 28-29, 266, 290
n.1 (1948). Thus, many of the other early works that mention "judicial
activism" in the context of Pritchett's book can be attributed to the
Schlesinger article as well. See, e.g., J. Francis Paschal, 35 Va. L. Rev. 128,
130 (1949) (reviewing Pritchett, supra); Earl Latham, 14 Law & Contemp.
Probs. 537, 543 (1949) (same); Walter P. Armstrong, 24 Ind. L.J. 308, 313
(1949) (same); Pendleton Howard, 23 S. Cal. L. Rev. 165, 167 (1949) (same).
[FN23]. Schlesinger, supra
note 22, at 74-76.
[FN24]. Id. at 76-77. Schlesinger included Justice Burton, the
only Republican appointed to the Supreme Court from 1933 to 1953, among the
Champions of Self Restraint on the basis of very little evidence. Burton was
sworn in on October 1, 1945, and had yet to become fully embroiled in the
controversy. However, Schlesinger's label proved accurate: Justice Burton
"was found most often concurring with those Justices who believed that the
Court should use restraint in the exercise of its great powers to declare statutes
unconstitutional and to impose federal standards upon the states." Notes:
In Memoriam - Harold Hitz Burton, 78 Harv. L. Rev. 799,
[FN25]. Schlesinger, supra note 22, at 78.
[FN26]. Id. at 201.
[FN28]. Id. (Douglas taught there and Black sent his son there).
[FN29]. Id. (pointing to the work of Thurman Arnold, Fred
Rodell, and Walton H. Hamilton as being influential).
[FN33]. Id. at 202.
[FN36]. Id. at 204.
[FN37]. For classic Frankfurterian discussions of judicial
restraint, see Am. Fed'n of Labor v. Am. Sash & Door Co., 335
U.S. 538, 553 (1949); Lincoln Fed. Labor Union v. Northwestern Iron &
Metal Co., 335 U.S. 525 (1949); and
Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). But see Mark B. Rotenberg,
Politics, Personality and Judging: The Lessons of
Brandeis and Frankfurter on Judicial Restraint, 83 Colum. L. Rev. 1863, 1864
(1983) (reviewing H.N. Hirsch, The
Enigma of Felix Frankfurter (1981)) ("Propounding a 'rigidly austere
doctrine' of judicial restraint, Hirsch alleges, was not only disingenuous and
artificial for a judge with Frankfurter's background of frenetic activism on
behalf of countless legal and political causes, but also internally
inconsistent and ultimately absurd.").
[FN38]. Schlesinger also traces this dispute to the differences
between the judicial philosophies of Justices Holmes and Brandeis. To put it
bluntly, "Holmes believed that if the American people wanted to go to
hell, he could not see anything in the Constitution to stop them."
Schlesinger, supra note 22, at 208. Brandeis "would require [legislation]
to conform to certain standards of social wisdom." Id. In short,
"Holmes wanted to make sure that the people could embody their desires in
law, whatever the nature of the desires, while Brandeis could never relieve
himself of a sense of responsibility for the results of judicial decision. This
is the essence of the current struggle." Id.
[FN39]. Schlesinger, supra note 22, at 204.
[FN41]. Id. at 206.
[FN42]. One need only look to the vitriol and accolades that
followed Lawrence v. Texas, 539 U.S. 558 (2003), to realize that these concepts remain intense sources of
disagreement. Compare Jeffrey Rosen, Sex Appeal, New Republic Online, at
https://ssl.tnr.com/p/docsub.mhtml?i=express&s=rosen063003 (last visited
Aug. 19, 2004) ("Yes, as a constitutional matter, Lawrence is worse than
Roe."), with Sherry Colb, Welcoming Gay People Back into the Fold: The
Supreme Court Overrules Bowers v. Hardwick, at http://
writ.news.findlaw.com/colb/20030630.html (June 30, 2003).
[FN43]. Schlesinger, supra note 22, at 208.
[FN44]. 304 U.S. 144, 152 n.4 (1938) (suggesting that the Court employ a narrower
"presumption of constitutionality" for legislation that may implicate
the rights of certain political minorities); see also Louis F. Powell, Jr., Carolene Products Revisited, 82 Colum. L. Rev. 1087,
1087 (1982) (describing the
background and importance of the "most celebrated footnote in
[FN45]. See John Hart Ely,
Democracy and Distrust: A Theory of Judicial Review (1980) (proposing a
solution to the countermajoritarian difficulty raised by Carolene Products
through the idea of representation-reinforcement); see also Edward White, The Arrival of History in Constitutional Scholarship, 88
Va. L. Rev. 485, 548-58 (2002)
(providing an overview of Professor Ely's ideas in an historical context).
[FN46]. 531 U.S. 98 (2000) (per curiam).
[FN47]. 410 U.S. 113 (1973).
[FN48]. Laurence Tribe elegantly captures the difficulty of this
inquiry in his discussion of Bush v. Gore. See Laurence Tribe, EROG v. HSUB and its Disguises: Freeing Bush v. Gore
from its Hall of Mirrors, 115 Harv. L. Rev. 170, 300 (2001). Tribe considers the possibility that a future
"[c]ourt could treat Bush v. Gore as an object lesson counseling against
judicial 'activism' in those cases in which __________." He continues,
My own favorite
filler for the blank in the preceding paragraph would use Bush v. Gore to
counsel against judicial activism in cases in which such textual and structural
guidance as the Constitution provides points toward permitting the political branches to resolve
the dispute under procedures at least sketched, if not fully spelled out, by
the Constitution itself and by statutes or treaties promulgated pursuant to it;
in which there is no clearly threatened violation of any constitutional right
that the political branches are structurally incapable of, or indisposed
toward, protecting; in which taking jurisdiction away from the political
branches in the circumstances presented would yield no coherent remedy for
whatever right is said to be threatened; in which the contemplated judicial
action would serve to entrench the power of the political party or group
seeking such action rather than to protect relatively powerless individuals or
groups from the entrenched power of others; or in which the judicial action in
question would advance the interests of the controlling majority on the Court
in some extrinsic way, as by assuring the nomination of like-minded
replacements. Bush v. Gore fails on all five counts.
Id. at 300-301.
[FN49]. Schlesinger, supra note 22, at 21 (stating further that
the wise resolution of this debate "could easily make this Court, with its
remarkable abilities and its agreement on a wide range of constitutional
fundamentals, one of the great creative Courts of history.").
[FN50]. Compare Christopher
Peters, Adjudication as Representation, 97 Colum. L. Rev. 312,
434 (1997) ("[C]harges of
judicial activism are often leveled when a court strikes down a democratically
enacted statute; this indeed is the most frequent target of Judge Bork's
criticism.") (citing Robert H. Bork, The Tempting of America 17 (1990)),
with Schlesinger, supra note 22, at 208 ("For the removal of unwise laws
from the statute books appeal lies not to the courts but to the ballot and to
the processes of democratic government.") (quoting Harlan Fiske Stone as
an example of judicial restraint, in opposition to judicial activism).
[FN51]. Albon P. Man, Jr., Mr. Justice Murphy and the Supreme
Court, 36 Va. L. Rev. 889, 916 (1950). Justice Rutledge has also been described
in this manner. See Lester E. Mosher, Mr. Justice Rutledge's Philosophy of
Civil Rights, 24 N.Y.U. L.Q. Rev. 661, 667-68 (1949) (describing Justice
Rutledge as a judicial activist in civil rights matters, while exercising
judicial self-restraint in economic matters).
[FN52]. Alfred L. Scanlan, The Passing of Justice Murphy--The
Conscience of a Court, 25 Notre Dame L. Rev. 7, 38 (1949).
[FN53]. A somewhat tempered version of this view still has
purchase today. See, e.g., Laurence H. Tribe & Michael C. Dorf, On Reading
the Constitution (1991); Harry H. Wellington, Interpreting the Constitution
(1990); cf. Christopher Wolfe, The Result-Oriented Adjudicator's Guide to
Constitutional Law, 70 Tex. L. Rev. 1325, 1325 (1992) (book review) ("Whatever the motivation, Laurence
Tribe and Michael Dorf and Harry Wellington enter ready to resurrect the
unabashed judicial activism of the glory days of the Warren Court.").
[FN54]. Note, Administrative Law: Judicial Review Denied Attorney
General's Order for Removal of Enemy Alien, 34 Cornell L.Q. 425, 429 (1949).
[FN55]. Louis H. Pollak, Review: The Supreme Court in the
American System of Government, 65 Yale L.J. 749, 752 n.11 (1956).
[FN56]. Even defenses of expansive or dynamic approaches to
constitutional interpretation are usually not couched in direct praise for the
practice of judicial activism as such. See, e.g., Erwin Chemerinsky, The Rhetoric of Constitutional Law, 100 Mich. L. Rev.
2008, 2019-20 (2002)
("Obviously, judicial activism can be good or bad."). Furthermore,
even scholars that extol the virtues of judicial activism in some contexts
concede that it generally carries a strongly negative connotation. See, e.g., id. at 2020
("[R]hetoric, both popular and in judicial opinions, treats judicial
activism as inherently bad and judicial
restraint as always good."); Erwin Chemerinsky, Perspective on Justice,
L.A. Times, May 18, 2000, at B11 (criticizing "Reagan and Bush
justices" for engaging in "aggressive conservative judicial activism
[FN57]. Over the course of his prolific career, Professor
McWhinney has taught at Heidelberg, Indiana, Madrid, McGill, the Hague Academy,
the National University of Mexico, Simon Fraser University, and the Sorbonne,
among many others. The author of more than forty books and hundreds of
articles, McWhinney is a well-respected scholar in numerous fields, including
political science and international law. He has acted as a legal consultant to
the United Nations and Constitutional and International Law Adviser to several
foreign governments, and served as a Member of the Permanent Court of
Arbitration at The Hague. During the 1990s, McWhinney was a Member of the
Canadian Parliament for two terms.
[FN58]. Edward McWhinney, The Supreme Court and the Dilemma of
Judicial Policy-Making, 39 Minn. L. Rev. 837, 837 (1955).
[FN60]. Id. (quoting Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting)).
[FN61]. 198 U.S. 45, 76 (1905) (The Court should uphold a legislative enactment, even if
it seems ill-advised, "unless it can be said that a rational and fair man
necessarily would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people and our
[FN62]. McWhinney, supra note 58, at 837.
[FN65]. 249 U.S. 47, 52 (1919) (announcing "clear and present danger" test).
Such a presumption is most often associated with footnote four of United States v. Carolene Prods. Co., 304 U.S. 144,
152 n.4 (1938).
[FN66]. McWhinney notes that judicial self-restraint, at least
for Justice Frankfurter, "is predicated on the rule of reason--unless the
Court can say that reasonable men could not
possibly have passed the legislation in question, the Court irrespective of its
own views on the legislation, must uphold it." McWhinney, supra note 58,
at 848. But this has its own problems. Judicial self-restraint, he explains,
"involves the resort to legal relativism," and "seems to run the
risk of too frequently reducing to an unconscious and therefore (since the
weighing of policy alternatives requisite to an informed decision is
necessarily absent) rather inefficient form of policy-making." Id. at 850.
[FN67]. Id. at 843.
[FN69]. Id. at 844 (quoting Sherrer v. Sherrer, 334 U.S. 343, 365-66 (1948) (Frankfurter, J., dissenting)).
[FN70]. Id. at 845.
[FN75]. Id. at 846.
[FN76]. 33 N.Y.U. L. Rev. 775 (1958). McWhinney also explores
some of these themes in his book, Judicial Review in the English-Speaking World
[FN77]. The article also highlights McWhinney's willingness to
reconsider his previously stated views. For example, he suggests that history
alone cannot resolve current disagreements over the proper judicial role:
[T]he cases for and
against judicial self-restraint and judicial activism must be validated today
by something more than a showing of an unbroken chain of connection with
Holmes....One might, indeed, say that even in terms of historical truth, it is
unfair to invoke Holmes to solve the problems of the present day.
The Great Debate: Activism and Self-Restraint and Current Dilemmas in Judicial
Policy-Making, 33 N.Y.U. L. Rev. 775, 778 (1958).
[FN78]. Id. at 790.
[FN80]. Id. at 786.
[FN81]. See, e.g., John O. McGinnis, Reviving Tocqueville's America: The Rehnquist Court's
Jurisprudence of Social Discovery, 90 Calif. L. Rev. 485 (2002); Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141
(2002); Christopher O. Schroeder, Causes of a Recent Turn in Constitutional
Interpretation, 51 Duke L.J. 307 (2001). But see Thomas Merrill, The Making of a Second Rehnquist Court: A Preliminary
Analysis, 47 St. Louis U. L.J. 569, 571 (2003) ("I am not persuaded that the Court's recent behavior
can be neatly subsumed under any single conceptual rubric.").
[FN82]. McWhinney, supra note 77, at 794.
[FN83]. Anne S. Emanuel, Forming the Historic Fifth Circuit: The Eisenhower
Years, 6 Tex. F. on C.L. & C.R. 233, 234 (2002).
[FN84]. Judge John Minor Wisdom called Hutcheson an innovative,
"stiff-necked defender of the
Constitution [who] loved the law." John Minor Wisdom, In Memoriam: One of a Kind, 71 Tex. L. Rev. 913, 913 (1993).
[FN85]. See Douglas J. Feeney-Gallagher, Battle on the Benches: The Wagner Act and the Federal
Circuit Courts of Appeals, 1935-1942, 23 Seattle U. L. Rev. 503, 532-540 (2000).
[FN86]. 347 U.S. 483 (1954).
[FN87]. See Charles L. Zelden, The Judge Intuitive: The Life and Judicial Philosophy of
Joseph C. Hutcheson, Jr., 39 S. Tex. L. Rev. 905, 915-16 (1998).
[FN88]. John R. Brown, In Memoriam: Judge J. Skelly Wright, 57 Geo. Wash. L.
Rev. 1029, 1030 (1989).
[FN89]. 262 F.2d 754 (1959).
[FN90]. Id. at 758 n.3.
[FN91]. Id. at 757.
[FN92]. Id. at 755 n.1.
[FN93]. 319 U.S. 372 (1943).
[FN94]. Id. at 392.
[FN95]. Id. at 396-407, 411 (Black, J., dissenting).
[FN96]. Theriot, 262 F.2d at 760 n.5.
[FN98]. Id. ("[B]eginning with the dissent of the activists
in the Galloway case ....").
[FN99]. Id. Hutcheson does suggest that the judge plays a role
in "controlling" and
"guiding" the jury, but the suggestion is vague and not fleshed out.
[FN100]. Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering
View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J., 95, 164 n.355 (1988).
[FN101]. Ann Woolhandler & Michael G. Collins, The Article III Jury, 87 Va. L. Rev. 587, 625 (2001).
[FN102]. 268 F.2d 447, 451-53 (1959).
[FN103]. Id. at 460
(Brown, J., dissenting).
[FN104]. Id. at 460
(Hutcheson, J., concurring).
[FN105]. Through the year 2003, 264 federal and 364 state cases
have invoked the term. Westlaw search ["judicial activist" judicial
activism" "judicial activists" & DA(BEF 1/1/2004)] in
"ALLFEDS" and "ALLSTATES" databases, respectively,
performed by author on August 19, 2004. In federal cases, after appearing only
twice in the 1950s and four times in the 1960s, the term appeared in 24
opinions in the 1970s, 87 in the 1980s, 108 in the 1990s, and 39 more times in
2000-03. In state cases, since its first appearance in Scholle v. Secretary of State, 116 N.W.2d 350, 387
(Mich. 1962) (concurring opinion),
"judicial activism" has appeared 10 times in the 1960s, 37 times in
the 1970s, 109 times in the 1980s, 154 times in the 1990s, and 54 times in
2000-03. Series of searches performed by
author on Lexis and Westlaw on Jan. 20, 2003 and Aug. 19, 2004.
[FN106]. Lexis search [atleast3 ("judicial activism" or
"judicial activist" or "judicial activists" and date(geq
(1/1/1940) and leq(12/31/2003))] performed by author on Aug. 19, 2004.
[FN107]. 579 F.2d 152 (2d Cir. 1978).
[FN108]. Id. at 154.
[FN109]. Id. at 171-72 (Van Graafeiland, J., dissenting).
[FN110]. Id. at 172
(Van Graafeiland, J., dissenting).
[FN111]. Id. at 173
(Van Graafeiland, J., dissenting).
[FN112]. Id. (Van Graafeiland, J., dissenting).
[FN113]. Id. at 173-74 (Van Graafeiland, J., dissenting) (citing
Henry P. Monaghan, The Supreme Court 1974 Term Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975)).
[FN114]. Id. at 174 (Van Graafeiland, J., dissenting).
[FN115]. Id. at 171 (Oakes, J., concurring) (footnotes omitted).
[FN116]. 169 F.3d 820 (4th Cir. 1999), aff'd sub nom. United States v. Morrison, 529 U.S. 598 (2000).
[FN117]. Id. at 826.
[FN118]. Id. at 889
(Wilkinson, C.J., concurring).
[FN119]. Id. at 890
(Wilkinson, C.J., concurring).
[FN120]. Id. (Wilkinson, C.J., concurring).
[FN121]. 198 U.S. 45 (1905).
[FN122]. Brzonkala, 169 F.3d at 890 (Wilkinson, C.J., concurring).
[FN123]. Id. at 892
(Wilkinson, C.J., concurring).
[FN124]. Id. (Wilkinson, C.J., concurring).
[FN125]. 505 U.S. 144 (1992).
[FN126]. Brzonkala, 169 F.3d at 892 (Wilkinson, C.J., concurring).
[FN127]. Id. at 893
(Wilkinson, C.J., concurring).
[FN128]. See Morrison v. United States, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
[FN129]. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).
[FN130]. See Bd. of Trs. v. Garrett, 531 U.S. 356 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997).
[FN131]. See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002)
(holding that states are immune from private suits before formal administrative
tribunals); Alden v. Maine, 576 U.S. 706 (1999) (holding that states are immune
from private suits in state courts based on federal causes of action); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (holding that Congress cannot abrogate States' sovereign
immunity by passing laws under the Commerce Clause).
[FN132]. See id. at 893-898; see generally J. Harvie Wilkinson
III, Federalism for the Future, 74 S. Cal. L. Rev. 523
(2001); J. Harvie Wilkinson III, Is
There a Distinctive Conservative Jurisprudence?, 73 U.
Colo. L. Rev. 1383 (2002).
[FN133]. Wilkinson III, Is There a Distinctive Conservative
Jurisprudence?, supra note 132, at 1391.
[FN134]. Id. at 1391-92, 1387.
[FN135]. Id. at 1391.
[FN136]. Greg Jones, Proper Judicial Activism, 14 Regent U. L. Rev. 141,
[FN137]. Cass R. Sunstein,
Editorial, Taking Over the Courts, N.Y. Times, Nov. 9, 2002, at A19. For
further commentary on this editorial, see the Nov. 9, 2002, blog post entitled,
"Sunstein Axes 'Judicial Activism,' Accidentally Chops Off Toe..." at
http://www.discriminations.us/storage/001552.html (last visited Sept. 19, 2004).
[FN138]. See, e.g., Ruth Colker & Kevin M. Scott, Dissing States? Invalidation of State Action During
the Rehnquist Era, 88 Va. L. Rev. 1301, 1307-08 (2002); see also Ernest A. Young, Judicial Activism and Conservative Politics, 73 U.
Colo. L. Rev. 1139, 1146 n.20 (2002)
(listing other critics who have made this observation); Obstruction of Justice,
New Republic, May 19, 1997, at 9 ("A recent study by the libertarian
Institute for Justice confirms the absurdity of GOP charges that Clinton's
Supreme Court nominees are avatars of judicial activism. Justices Ruth Bader
Ginsburg and Stephen Breyer are more restrained and less likely to strike down
federal and state laws involving economic and civil liberties than any of their
[FN139]. Sunstein, supra note 137, at 19 ("Since 1995, the
Supreme Court has struck down at least 26 acts of Congress on constitutional
[FN140]. Indeed, it may suggest
that the problem lies with Congress, not the Court. Justice Scalia, for one,
has suggested that "Congress is increasingly abdicating its independent
responsibility to be sure that it is being faithful to the Constitution."
Stuart Taylor Jr., The Tipping Point, Nat'l J., June 10, 2000, at 1811. See
also Neal Devins, Congress as Culprit: How Lawmakers Spurred on the
Court's Anti-Congress Crusade, 51 Duke L.J. 435, 442 (2001) ( "Congress simply seems indifferent to the
constitutionality of its enactments ....").
[FN141]. See Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on
Constitutional Scholarship and Judicial Review, 62 Tex. L. Rev. 1207, 1207-10
(1984) ("I contend that this
inquiry into the legitimacy of judicial review is futile and dangerous.").
[FN142]. Sunstein, supra note 137, at 19.
[FN143]. Lino A. Graglia, It's Not Constitutionalism, It's Judicial Activism, 19
Harv. J.L. & Pub. Pol'y 293, 296 (1996).
[FN144]. One observer has synthesized the Sunstein and Graglia
definitions into the following statement: "Judicial activism involves
invoking novel or debatable interpretations
of the Constitution to strike down democratically adopted state or federal laws
and practices that offend one's moral or political beliefs, while showing
relatively little deference to the other branches of government and the
voters." Taylor, supra note 140, at 1818.
[FN145]. See, e.g., Cass Sunstein, 2002 Senate Committee Hearings
on the Judicial Nomination Process, 50 Drake L. Rev. 429, 463 (2002)
(suggesting that in the current era of "conservative judicial activism,
... the federal judiciary is showing too little respect for the prerogatives of
Congress [and] an excessive willingness to intrude into democratic
[FN146]. 514 U.S. 549 (1995).
[FN147]. Id. at 611
(Souter, J., dissenting).
[FN148]. Id. (Souter, J., dissenting).
[FN149]. 5 U.S. 137, 177 (1803) ("It is emphatically the province and duty of the
judicial department to say what the law is.").
[FN150]. See, e.g., Larry D. Kramer, Foreword: We the Court, 115 Harv. L. Rev. 4 (2001); Larry D. Kramer, Putting the Politics Back into the Political
Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000).
[FN151]. See, e.g., Mark Tushnet, Taking the Constitution Away
from the Courts (2000).
[FN152]. See Kramer, Foreword, supra note 150, at 5-9 and
[FN153]. See Graglia, supra note 143, at 296.
[FN154]. Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490
U.S. 477 (1989) (interpreting the Securities Act of 1933).
[FN155]. Id. at 486
(Stevens, J., dissenting). This statement is unanimous because the four
dissenters explicitly agreed with the majority's statement on this point. See id. at 484.
The majority, however, does not actually use the term "judicial
[FN156]. See Steven G. Calabresi & Gary Lawson, Equity and Hierarchy: Reflections on the Harris
Execution, 102 Yale L.J. 255, 276 n.106 (1992).
[FN157]. See Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam)
("[U]nless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower federal courts
no matter how misguided the judges of those courts may think it to be.");
see also Evan H. Caminker, Why Must Inferior Courts Obey Superior Court
Precedents?, 46 Stan. L. Rev. 817 (1994).
[FN158]. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth
Abortion and Word Games--A Response to Steve Grasz and Other Conservatives, 35
Creighton L. Rev. 11, 11-12 n.5 (2001).
[FN159]. The two examples (both dissents) used here invoke
disregard of precedent as one of several reasons why the majority opinion
represents judicial activism.
[FN160]. 456 U.S. 107 (1982).
[FN161]. Id. at 137
(Brennan, J., dissenting). One might argue that recently forged precedent
should have less weight than well-settled rules, since it may not have existed
long enough to change the public's reliance interests
or to qualify as settled law.
[FN162]. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 98-99
[FN163]. Id. at 98
(Stevens, J., dissenting).
[FN164]. Id. at 98-99
(Stevens, J., dissenting).
[FN165]. See Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L.
& Pub. Pol'y 23, 24 (1994).
[FN166]. Id. at 27-28.
[FN167]. Akhil Reed Amar & Vikram David Amar, How Should the
Supreme Court Weigh its Own Precedent?, Findlaw's Writ, Dec. 13, 2002, at http://
writ.news.findlaw.com/amar/20021213.html; Akhil Reed Amar & Vikram David
Amar, Precedent on the High Court, Findlaw's Writ, Dec. 27, 2002, at http://
writ.news.findlaw.com/amar/20021227.html; Vikram David Amar, Some Final
Thoughts on the Affirmative Action Ruling, and Reliance in a Changing Legal
World, Findlaw's Writ, Jan. 10, 2003, at http://
[FN168]. Amar, Some Final
Thoughts, supra note 167, at 1. See also Akhil Reed Amar, The Supreme Court
1999 Term, Foreword: The Document and the Doctrine, 114 Harv. L.
Rev. 26 (2000).
[FN169]. 505 U.S. 833 (1992).
[FN170]. 539 U.S. 558 (2003).
[FN171]. 505 U.S. at 854-55 (citations omitted). These factors are:
precedent's] central rule has been found unworkable; whether the rule's
limitation on state power could be removed without serious inequity to those
who have relied upon it or significant damage to the stability of the society
governed by it; whether the law's growth in the intervening years has left [the
precedent's] central rule a doctrinal anachronism discounted by society; and
whether [the precedent's] premises of fact have so far changed in the ensuing
two decades as to render its central holding somehow irrelevant or
unjustifiable in dealing with the issue it addressed.
Id. at 855.
[FN172]. For example, was this part of Casey dicta? See id. at
C.J., concurring in the judgment in part and dissenting in part). There remains
a real question as to whether it actually reconsidered and reaffirmed the basic
holding of Roe v. Wade, 410 U.S. 113 (1973). Also, Justice O'Connor called the factors
"examples" of how the court should consider overturning precedent;
thus, they are certainly not an unbending test. Casey, 505 U.S. at 854.
[FN173]. Compare the plurality's test with that of Justice Scalia:
"[T]he Justices should do what is legally right by asking two questions:
(1)Was Roe correctly decided?(2)Has Roe succeeded in producing a settled body
of law? If the answer to both questions is no, Roe should undoubtedly be
overruled." Id. at 999.
[FN174]. 539 U.S. 558 (2003).
[FN175]. Id. at 577
("In Casey we noted that when a Court is asked to overrule a precedent
recognizing a constitutional liberty interest, individual or societal reliance
on the existence of that liberty cautions with particular strength against
[FN176]. Id. at 587
(Scalia, J., dissenting).
[FN177]. William Eskridge,
Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361, 1362 (1988).
[FN178]. See id. ("Common law precedents enjoy a strong
presumption of correctness.").
[FN179]. See Brian C. Kalt, Three Levels of Stare Decisis: Distinguishing Common
Law, Constitutional, and Statutory Cases, 8 Tex. Rev. L. & Pol. 277, 278
[FN181]. Id.; see also Burnet v. Coronado Oil & Gas, Co., 285
U.S. 383, 405 (1932) (Brandeis, J., dissenting) ("In cases involving the
Federal Constitution, where correction through legislation is practically impossible,
this court has often overruled its earlier decisions.").
[FN182]. See Burnet, 285 U.S. at 406 ("Stare decisis is
usually the wise policy, because in most matters it is more important that the
applicable rule of law be settled than that it be settled right.").
[FN183]. Eskridge, supra
note 177, at 1362.
[FN184]. Kalt, supra note 179, at 279.
[FN185]. The "super-strong presumption against overruling
statutory precedents," Professor Eskridge argues, "is a very odd
doctrine, if it can even be called that. Its exact origins are something of a
mystery, its precedential support is shaky, and its uneven development and
application have spawned a dizzying array of exceptions." Eskridge, supra
note 177 at 1364-65, 1392.
[FN186]. Id. at 1364-69.
[FN187]. Richard A. Posner, The Meaning of Judicial Self-Restraint, 59 Ind. L.J. 1,
[FN188]. Id.; see also Henry P. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev.
1, 3 (1975) (offering "a
principled basis for a specialized common law rooted in the Constitution.").
[FN189]. 532 U.S. 275 (2001).
[FN190]. 42 U.S.C.
2000d et seq.
[FN191]. Sandoval, 532 U.S. at 287 ("Raising up causes of action where a statute has not
created them may be a proper function for common-law courts, but not for
federal tribunals.") (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350, 365 (1991)).
[FN192]. Id. at 311
(citations and internal quotations omitted) (Stevens, J., dissenting).