ADF Attorney Responds on Judicial Activism

Jordan Lorence, the ADF attorney who wrote the post on judicial activism that I replied to the other day has responded. He doesn't link to the response or mention me at all, but I assume it's my post he's responding to because my post was titled "ADF's Double Talk on Judicial Activism" and his reply is titled "No Double Talk on Judicial Activism Here". Assuming he sees this post as well, I hope from now on he'll follow the general rules of blog etiquette and post a link to the criticism he's responding to so that readers can actually see both sides rather than having to rely on their representation of the other side's arguments.

The odd thing about his response is that he doesn't really respond to the substance of my argument at all. What he attempts to do is give examples of what he calls "judicial activism", but all he's really doing is giving examples of bad rulings. No one would argue the fact that some rulings are well-reasoned while others are not, but that does not answer the question of why such rulings are being called "activist". Surely someone who argues for sticking to the meaning of the constitutional text will recognize that the term "activist" has a meaning that has to be recognized. The problem, as I've stated before, is that it doesn't mean anything in the actual usage of the phrase.

Keenan Kmiec wrote an excellent law review article in 2004 about the origin and uses of the phrase "judicial activism". He begins by noting, "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." And he is quite right.

Let's take a look at what Lorence says he means by the phrase. First, he says:

Judicial activism occurs when judges strike down a law that no text of the Constitution forbids the lawmakers to enact. My critics argue that I am merely saying that "judicial activism" means "I disagree with the court's decision." The critics say that I and others like me needlessly hurl the slur of "judicial activist" against judges we merely disagree with. I agree that reasonable people can disagree over the interpretation of a constitutional text and how it applies in a certain case.

All this really means is that he calls a ruling "judicial activism" whenever he thinks it was wrongly decided. And as he admits, reasonable people can disagree over whether it was wrongly decided. How, then, is this not an admission that I am correct when I say that the phrase really just means "a ruling I disagree with"? That's how this reads to me.

However, there is such a thing as judges misusing their authority to impose their own public policy predilections on the people by court decrees that have no reasonable textual support in the Constitution. That is what I call, "judicial activism," and it does exist.

The problem is, how do we tell that this is going on? Are there some objective criteria for determining when a judge is "imposing" their own public policy predilections and when they are not? Certainly, Lorence and I could both list examples where we think this is happening, but would we agree? For example, I would list Scalia's opinion in Raich, where he abandons completely any pretense of originalism in order to uphold the supremacy of the Controlled Substances Act over a California referendum allowing medical marijuana use. In doing so, he ignores completely the original meaning of the interstate commerce clause. Yet Scalia is allegedly the poster boy for non-activist judges, a justice who insists that the original public meaning of the constitutional text must be the controlling factor at all times.

Next, Lorence moves on to what he calls "indicators" that a ruling is an activist one.

(1) Judicial activism usually involves an "evolving constitution" so that something that once was constitutional suddenly becomes unconstitutional. Rather than seeing a consistent, settled meaning to the text, many judges believe the Constitution "evolves," and "grows" so that a law a legislature could constitutionally enact one day becomes unconstitutional another day. See for example the question of whether states may impose the death penalty for 17 and 16-year-old murderers. States did so for centuries, and some changed their minds on whether to use this authority or not. The Supreme Court said that such a law did not violate the 8th Amendment in Stanford v. Kentucky, 492 U.S. 361 (1989), but then later said that the Constitution evolved, and now it is unconstitutional in Roper v. Simmons, 543 U.S. 551 (2005) (citing evolving state standards and foreign law, to boot). The reason for such a change, courts frequently say, is that the modern day judge is more morally enlightened than the Supreme Court justices of the past, so the current judgment is "better" than the past judgment. This strikes me as a tad arrogant and not true in many cases.

The case he mentions involves the meaning of the "cruel and unusual punishments" clause. Lorence says that the meaning of that clause, and all clauses of the constitution, must be fixed and immune to evolving over time. But even Justice Scalia has said that if he was faced with a law that allows public floggings as punishment for crimes, he would not vote to uphold such a law. He further said that he did not know any judge who would uphold such a law, yet he admits that according to the original public meaning of the cruel and unusual punishments clause, such laws were clearly constitutional. If even Justice Scalia can so casually jettison the interpretive theory that he has publicly championed for decades in order to avoid results that he considers heinous, perhaps that's a sign that the interpretive theory isn't such a good one in the first place.

(2) Judicial activism frequently involves courts finding a new "right" that lacks any textual basis in the Constitution - The Supreme Court announced a constitutional right to abortion in Roe v. Wade, 410 U.S. 113 (1973), but found that right not in any text of the Constitution (because none existed), but "emanations from the penumbras" (vibes from the shadows) of certain constitutional provisions. The justices used reasoning like, the Third Amendment right against the government quartering troops in your home, and the Fourth Amendment right against unreasonable searches and seizures, create zones of privacy with penumbras emanating from them that protect abortion. One could find a constitutional right to about anything if judges can stretch the Constitution that creatively.

Roe, of course, is the one ruling that the right flogs constantly in this regard, but do they apply this reasoning consistently? No, they do not. As I noted in this post a couple weeks ago, conservatives happily embrace penumbral reasoning when they like the results (and I also agree with all of the results in the cases based on penumbral reasoning listed in that article). There are lots and lots of cases where the Supreme Court has recognized a right not explicitly stated in the Constitution, yet folks like Lorence only complain about them when they don't think people should have said right. The problem is that their rhetoric is rarely aimed at arguing that that specific right isn't justified, but is instead aimed at the mere fact that the court "finding a new right" where no court had previously found one.

For too many conservatives, they want to throw the baby out with the bathwater. Penumbral reasoning is absolutely vital to constitutional interpretation. I would argue that it is virtually mandated by the general nature of the text. You cannot simply look at the original expectation of how the law would be applied, you have to look at the text, the structure and the underlying principles in order to apply general provisions in specific cases and in order to give any meaning to the 9th amendment. The fact that such reasoning may lead to results one doesn't like in some cases should not be a pretext for arguing against penumbral reasoning entirely (especially when there is a huge range of cases that use that type of reasoning that the person claiming to reject penumbral reasoning would wholeheartedly endorse as correct rulings).

(3) Judicial activism sometimes completely ignores past precedent to interpret a constitutional provision in a way no court has ever done before. One notable example of this is the Supreme Court's decision in 1962 declaring unconstitutional Bible reading in public schools. In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court cites no other Supreme Court decision as precedent for its extreme "separation of church and state" view of the Establishment Clause. The high court could not reference any of its other opinions because no such supporting precedent existed. The entire Engel opinion only cites one other Supreme Court opinion, and that is as the source for a comment about a statute passed in the early days of the Republic, not for any constitutional principle it announced. That's it. When you're making new law, the old law doesn't support the "change," so it doesn't get cited.

This is a very odd argument, based upon a factually false premise. Engel v Vitale did not declare Bible reading unconstitutional, it declared mandatory school prayer unconstitutional (see that ruling here). More importantly, notice that he says that judicial activism sometimes means ignoring past precedent to interpret the constitution in a way that no other court had done previously. Why only sometimes? Because sometimes past courts simply got it wrong, often for very long periods of time. In his original post, Lorence cites Plessy as an example of an "activist" (read: bad) ruling that had stood for a long time before properly being overturned by Brown v Board of Education.

So the mere fact that a court rules in a manner inconsistent with the interpretations of prior courts not only is not always an indicator of "judicial activism", sometimes it might even be an indicator that the present court is correcting the "judicial activism" of past courts. And now you begin to see just how malleable these indicators are; they can be a clear indication of judicial activism or they can be the exact opposite, it all depends on whether one agrees with the outcome of the case or not.

Notice also that, despite the fact that he admits that this indicator can mean a ruling is "activist" or can mean that a court is rejecting previous "activist" rulings, he makes no argument at all as to why Engel was wrongly decided. He has declared it an example of judicial activism based solely on the fact that it meets one of his "indicators", but since this indicator could also apply to cases that are not activist (by his own admission), he cannot argue that the ruling is wrong solely because no court had previously ruled that way (of course, it might also be that no court had ever had opportunity to rule that way; I'm not aware of any previous case challenging mandatory prayer in public schools, but perhaps there were some).

So the question is, was Engel wrongly decided? Surely if the Establishment clause has any real meaning at all, it must, at the very least, prevent the government from forcing people to engage in mandatory prayer. As Justice Black's ruling says, no one disputes that prayer is an explicitly religious exercise. If government mandated religious exercises do not violate the establishment clause, then what on earth does? Lorence makes no substantive argument whatsoever on why Engel was not correctly decided. Indeed, the fact that he thinks it was wrongly decided indicates that he thinks that the government has the authority to force people to practice a religion that they do not believe in. Can you imagine anything more contrary to the religion clauses of the first amendment and the principles of liberty than that?

(4) Judicial activism usually entails judges acting like lawmakers rather than judges acting as umpires.

This is an argument I've always found fascinating, especially when made by social conservatives. We hear constant invocations from conservatives against judges "legislating from the bench." But who is probably the single most cited legal authority by conservatives? Blackstone, of course. Conservatives love to cite common law traditions, particularly those that established civil and criminal laws against immorality (adultery, blasphemy, homosexuality, etc). Roy Moore cites the common law almost constantly in arguing that homosexuality should be punishable by imprisonment or death. But the English common law was largely judge-made law, and Blackstone was an enthusiastic support of "judicial legislation". So ironically (and hypocritically), the same people who rail against "legislating from the bench" will turn around 30 seconds later and cite judge-made law from the English common law to justify laws against immorality that they support.

The other issue, of course, is that there is no coherent standard for determining when a judge is "legislating from the bench" and when he's merely interpreting the law. Lorence offers no such criteria, nor does any other advocate against "judicial activism" that I know of. This seems to go back to this notion of judges forcing their policy preferences into the law, but that requires mind-reading in order to know that it's going on. The only answer seems to be "I know it when I see it", but that is entirely too subjective; one is likely to see it only when one disagrees with the results.

Also bear in mind the argument that I made in my previous post, to which Lorence does not reply. He endorses Brown v Board of Education as a necessary corrective to Plessy, which he regards as an "activist" ruling. But if any decision can be fairly called "legislating from the bench", it's Brown. So again we're left with this odd set of confused criteria for judicial activism that are sometimes applied and sometimes not. If a ruling finds a right that no previous court has found, it's being activist....except when it's not. If a court overturns the "will of the people" then it's being activist....except when it's not.

Finally, he concludes:

Judicial activism poses a threat to ordered liberty and government by the people. The people have agreed to a Constitution by a super-majority. Sometimes the people will violate that Constitution with laws passed by a simple majority. Courts can legitimately strike down laws as unconstitutional in those situations. However, judges who step in to correct perceived public policy "errors" made by the people and their lawmakers are usurping legislative authority if they discover new "rights" with no clear roots in the text of the Constitution.

I left a comment after the post I'm responding to, but it's stuck in moderation at this point and has not been put up on the page. I asked a simple question: was Loving v Virginia an activist ruling or not? It fits virtually all of his criteria for one. The court declared a right to marriage that is nowhere stated in the Constitution. In doing so, it disagreed with innumerable previous courts, none of whom had ever recognized such a right. It also overturned anti-miscegenation laws that had existed for centuries, not only in American law but in the English common law as well. Likewise, the ruling was based upon the equal protection clause of the 14th amendment, and the framers of that amendment had explicitly stated that this clause did not invalidate laws against interracial marriages. Thus, the original meaning and original expected application of the text also argues against the ruling. So by the criteria laid our for judicial activism, this ruling must be an activist one. Yet virtually no one will come out and say that. Why? Because the result was so obviously the correct one to any sane human being.

And that is precisely the problem with this phrase. Even if one meets all of the criteria, it still won't be applied consistently but only depending on the result. And that goes back to my original statement: the phrase "judicial activism" really just means a ruling I disagree with.