David’s Hammer
The Case for an Activist Judiciary
by Clint Bolick
Cato, 165 pp., $19.95
Depending on where you stand on the political spectrum, you might be angry about unelected liberal judges rewriting the Constitution to reflect their own ill-conceived policy choices. Or you might be outraged that reactionary conservative judges are striking down laws and threatening all the progress the country has made in terms of civil rights and liberties. Either way, you’re likely to view the actions of these dangerous black-robed arbiters as “judicial activism,” which must be stopped by any and all means.
But what is this judicial activism? If it’s merely “an invalidation of government action,” as my former professor Cass Sunstein has proposed, then what are the beloved liberal troika of Brown, Miranda, and Roe–which struck down duly-enacted laws relating to segregation, police procedure, and abortion–but unabashed activism? Conversely, if President Bush is correct that it’s disrespecting federalism and acting “without regard for the will of the people and their elected representatives,” then what could be more activist than the Justice Department’s opposition to California’s medicinal marijuana and Oregon’s right-to-die statute?
Examples like this abound. “Judicial activism” is everybody’s favorite bogeyman, but neither the left nor the right can provide a definition beyond Potter Stewart’s famous dictum (issued in the context of obscenity but, as Sandra Day O’Connor proved, extendable to an entire non-philosophy of jurisprudence): I’ll know it when I see it.
“Most people who use the term don’t have a coherent definition of it,” explains Georgetown law professor Randy Barnett. “It typically means judicial opinions with which they disagree.” But it doesn’t have to be this way. And in this refreshing new book, veteran constitutional litigator Clint Bolick shows that the purveyors of conventional punditry all miss the larger point: The role of the judiciary vis-à-vis constitutional jurisprudence is to faithfully interpret and apply the Constitution, full stop.
It is no small task, in part because of the doctrinal mess the Supreme Court has made, but whether a particular statute stands or falls is of no moment. Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint–or, as Chief Justice Roberts called it at his confirmation hearings, “modesty.”
That is, so long as we accept that judicial review is constitutional and appropriate in the first place–how a judiciary is supposed to ensure that the government stays within its limited powers without it is beyond me–then we should only be concerned that a court “gets it right,” regardless of whether that correct interpretation leads to the challenged law being upheld or overturned. For that matter, an honest court watcher should not care whether one party wins or another–or, to paraphrase Justice Alito’s response to Senator Dick Durbin at his confirmation hearings, the little guy should win when he’s in the right, and the big corporation should win when it’s in the right.
Bolick shows how this conception of judicial activism-cum-review advances the causes of economic liberty, private property rights, and school choice–not coincidentally, for these are the “practice groups” of the Institute for Justice, the public interest law firm he cofounded. The Framers’ constitutional understanding itself provides the boundaries between proper and improper judicial activism. Courts should review all state actions that implicate individual liberty while giving meaning to every word of the Constitution; apply not a presumption of constitutionality but of liberty; void any exertion of power not expressly enumerated; and exercise only judicial, rather than legislative or executive, power.
“The dividing line, then, is not between judicial activism and judicial restraint,” Bolick clarifies, “it is between legitimate and vigorous judicial action and illegitimate judicial imperialism.” For proof of this observation’s legitimacy, look no further than the contrast between the public sentiment toward the very different “activisms” of the Warren and Rehnquist courts. Ultimately, judicial power is not a means to an end–liberal, conservative, or anything else–but an enforcement mechanism for the strictures of a founding document. To that end, as it were, certain judicial decisions will produce unpopular outcomes.
But the United States is a republic, with a founding document intended just as much to curtail the excesses of democracy as it was to empower its exercise. And in a country ruled by laws, and not men, the proper response to an unpopular legal decision is to change the law or amend the Constitution. Any other method leads to a sort of judicial abdication, and the loss of those very rights and liberties that can only be vindicated through the judicial process. Or to government by black-robed philosopher-kings. And as Justice Scalia is fond of saying, why would we want to be ruled by nine lawyers?
Ilya Shapiro is a lawyer and writer in Washington.
