Judicial Activism

  • September 17, 2013
    Guest Post

    by William P. Marshall. Marshall is the William Rand Kenan, Jr. Distinguished Professor of Law at UNC School of Law. Marshall is also an ACS Board member. This post is part of our 2013 Constitution Day symposium.

    For years, conservative thought has consistently claimed that its approach to constitutional interpretation meant following the Law, whatever the result. Conservatives, according to this mantra, were well, conservative, in the non-political sense of the term. Liberal constitutionalism, in contrast, was nothing more than “activist” decision making in which liberal judges simply “legislated from the bench” in order to reach favorable results. 

    Conservative thought in this respect was something of a moving target in that its description of improper judicial activism kept changing. At first, the term meant judicially overturning the actions of elected officials. Later, however, when that account of activism proved inconsistent with the conservative political agenda (think affirmative action or limits on the commerce power), the definition changed. Now, of course, after a brief but unsuccessful foray into attempting to define activism as decision making that veers from the Framers’ “original intent,” conservative thought asserts that activism means deviating from the Constitution’s “original understanding.”  As before, conservatives assert that they do not deviate from their principles no matter what results may follow. As before, conservatives consistently follow their principles, results notwithstanding -- except, or of course, when they don’t.  See e.g. Shelby County v. Holder; Citizens United v. FEC; Bush v. Gore; Adarand Construction Inc. v. Pena.

    Remarkably, however, despite both its erraticism and its disingenuousness, the conservative myth persists. In fact the notions that modern constitutionalism has taken us away from the true meaning of the Constitution and that the country requires a return to originalist principles has provided the narrative for not just legal thought but also for a major political movement – the tea party. And even though it can be readily shown that the method of constitutional interpretation that the tea party decries dates back to Chief Justice John Marshall and the early years of the Republic, their answer, apparently is that John Marshall is simply a part of the problem.

  • November 1, 2010
    If you want signs of so-called "judicial activism" look to the conservative bloc of the U.S. Supreme Court, writes Sen. Sheldon Whitehouse, a member of the Senate Judiciary Committee.

    In a piece for The National Law Journal, Sen. Whitehouse (pictured) writes that for many years the term "judicial activism" has been lobbed by conservatives "so repeatedly that it is now in the common parlance, but without any clear meaning." He continues, "For some, ‘judicial activism' applies to any decision that fails to meet conservatives political purposes, but never to a decision that meets conservative goals, no matter how many acts of Congress it strikes down, how many prior decisions it overturns or how recklessly it strains to decide broad questions of constitutional law."

    Sen. Whitehouse notes a number of "red flags" to look for when determining if a court is indeed engaging in judicial activism. Those markers include, a court with low respect for state or federal laws, a court that easily strikes precedents, one that issues strings of 5-4 decisions instead of finding common ground, a court where a "discernable pattern of results" emerges, and a court that easily ignores "rules and tenets of appellate decision-making that have long guided courts of final appeal."

    The senator concludes that the Roberts Court's conservative bloc is flying all those red flags.

    The five-member conservative majority easily overturns precedent, fails to find common ground, goes well beyond appellate decision-making standards, easily ignores the legislative process, and a discernable pattern has emerged.

    Sen. Whitehouse writes:

    Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues. Simply put, the conservative bloc has established a record that has a distinctive pattern - and, at this stage, it is improbable that it would be coincidence. As Jeff Toobin noted in The New Yorker in May 2009, the leader of this bloc, Chief Justice John Roberts Jr., ‘has served the interests, and reflected the values, of the contemporary Republican Party.'

  • July 6, 2010
    In an editorial, the "Court's Aggressive Term," The New York Times tags the Roberts Court as one that is increasingly bent on overturning precedent that its conservative majority has never had much use for, especially precedent that hampers rights of corporations.

    Citing Chief Justice John Roberts' concurring opinion in Citizens United v. FEC (the 5-4 decision which found unfettered First Amendment rights for corporations to funnel profits into campaigns), The Times editorial board notes, "Explaining why the court's five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court's conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability."

    The Times editorial took note of Justice John Paul Stevens' blistering dissent in Citizens United, where the now-retired justice slammed the Roberts' majority for blazing "through our precedents" in a "dramatic break from our past."

    But as jarring as Citizens United was, it wasn't the only aggressive action taken in favor of corporate interests this past term by the Roberts Court. The Times noted that late in the term the Court, in that "was nothing other than judicial activism," shoved itself "directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state's campaign finance system. The message to other states was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way."

    The Court's "deference to corporate rights found in Citizens United," the editorial continued, "could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court's willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court."

    For more analysis of the high court's recent term, see video of the ACS Supreme Court term review. Also, the Brennan Center's Monica Youn talks with ACSblog about the ramifications of the Citizens United decision here. Finally for analysis of the Court's opinion in the arbitration contract case referenced by The Times editorial, see an ACSblog guest post by George Washington University law professor Alan B. Morrison here.

  • April 29, 2010

    On the same day that Justice John Paul Stevens heard oral argument for the last time, President Barack Obama signalled that he will note the threat of conservative judicial activism as he considers Stevens' replacement. On a rare trip to the press section of Air Force One, Obama said that judicial restraint is a principle that should bind both progressive and conservative jurists.

    The Associated Press reports:

    Obama made clear that his views on judicial restraint are not the only basis he will use in choosing his next nominee for the high court, a decision expected over the next few weeks.

    But his comments underscore just how much he thinks courts are being vested with too much power and are overruling legislative will, a factor that will influence his nominee choice.

    Obama already has openly criticized the Supreme Court for a January ruling - one led by the court's conservative members - that allowed corporations and unions to spend freely to influence elections. Obama has vowed to replace retiring Justice John Paul Stevens with a like-minded justice who will not let powerful interests crowd out voices of ordinary people.

  • April 27, 2010
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment 

    "Conservatives' court-packing ploy," an op-ed by Professor William Marshall, explained how Republicans'

    "judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege. The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings.

    E.J. Dionne Jr.'s Washington Post column described how "the conservative intellectual offensive" has transformed

    our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee ... must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it. Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies ....

    Accounts of right-wing judicial activism have focused on the Roberts' Court's opinions, and properly so. For example, my April 13th ACSblog guest post explained how laws that protect people and the environment are "threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent."