JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT (Update)

In contemporary constitutional rhetoric, "judicial activism" is almost always a term of opprobrium. Prospective Supreme Court nominees regularly disclaim activist inclinations, and political and academic critics of the Court regularly decry activist overreaching. Yet despite the term's salience, there is considerable confusion as to its precise meaning.

In a loose sense, the attack on judicial activism, and the defense of its cognate virtue, judicial restraint, rest on a distrust of judicial discretion and an insistence on rule of law values. On this view, judicial decisions are entitled to respect because they are legal, objective, impersonal, and apolitical. An "activist" judge risks bringing constitutional law into disrepute by using it as an excuse to implement merely personal or political values.

To be sure, most sophisticated contemporary students of constitutional law reject this dichotomy between the "personal" and "objective," at least in its simplest form. Although Justice owen j. roberts once insisted that the task of Supreme Court Justices was simply to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former," there are few modern adherents to mechanical jurisprudence among observers of constitutional law. Yet, despite persistent and trenchant efforts to discredit the mechanical view, it retains a powerful hold on popular perceptions of the appropriate judicial function and, at least in diluted form, plays some role in most standard justifications for judicial review.

Moreover, perhaps paradoxically, the modern attack on the mechanical theory, as well as the theory itself, tends to buttress arguments for judicial restraint. For if it is indeed true that judges must inevitably insert their personal values into the task of constitutional review, as critics of the mechanical theory insist, then there is all the more reason to constrict sharply the occasions for this review. Restraint is especially important, these critics maintain, because policy decisions by judges, implemented under the guise of constitutional review, often have unintended and unfortunate consequences. It is claimed, for example, that the Court's invalidation of abortion laws in roe v. wade (1973) served only to obstruct an emerging, sensible compromise to the abortion dispute, and that the Court's condemnation of school segregation in brown v. board of education (1954) did little or nothing to advance the cause of racial equality. Often these criticisms are linked to the claim that constitutional review is elitist and divisive. On this view, constitutional decisions unjustifiably reduce the space for democratic deliberation and needlessly bring to the fore contested and unresolvable issues of fundamental principle.

There are, then, a complex of powerful arguments that support judicial restraint. To some degree, however, these arguments conceal important fissures within the critique of activism. For example, it is not always clear whether critics of activism are referring to its procedural or substantive manifestations. Procedural restraint requires judges to limit the occasions for, and scope of, constitutional decisions. Among the tools that accomplish these objectives are doctrines concerning standing, ripeness, mootness, political questions, and avoidance of unnecessary constitutional exposition. In contrast, substantive restraint requires judges to interpret the substantive provisions of the Constitution narrowly. Familiar manifestations of this position include the insistence on no more than "mere rationality" for statutes challenged under the equal protection clause, the rejection of substantive due process, and the limitation of freedom of speech protections to the kinds of political speech protected at the time of the Constitution's framing.

On some occasions, the procedural and substantive versions of restraint are in tension with each other. Sometimes, procedural restraint will prevent a Court from reaching the merits in circumstances where doing so might lead to greater substantive restraint. For example, in a 1986 decision, Diamond v. Charles, the Court rejected an appeal on standing grounds in circumstances where the appellant asked the Court to loosen substantive constitutional constraints on anti-abortion statutes.

Matters are made still more complicated by tensions internal to each version of restraint. Procedural devices like standing and political question can be used to avoid constitutional decisions, but they also increase the degree of judicial discretion. Many commentators have argued that these doctrines are not "principled" or firmly rooted in determinate constitutional doctrine and therefore allow courts great freedom to indulge personal, nonlegal preferences.

There are similar tensions internal to the substantive version of restraint. On one view, the argument against judicial activism pushes one toward some form of textualism or originalism. Only by tying constitutional doctrine closely to the text, or the original intent of the Framers, can judicial discretion be controlled. A second view holds that judges should be respectful of precedent, which makes their decisions more general and rule-like. Still a third view holds that judges ought to interpret the Constitution so as to maximize the space for political decision-making.

It should be apparent that these three views will often lead to different outcomes. For example, in a prior generation, both Justices hugo l. black and felix frank-furter claimed to practice judicial restraint—Black, when he read the first amendment free speech clause literally, resulting in the invalidation of many statutes; and Frankfurter, when he read it more loosely, so as to uphold many statutes. More recently, Justices william j. brennan, jr. , and thurgood marshall often accused their colleagues of "judicial activism" when they failed to follow prior precedent that the majority overruled or distinguished precisely because the precedent authorized more judicial intervention than the majority thought appropriate.

The upshot of this confusion is that almost everyone in contemporary constitutional debate can claim the mantle of judicial restraint, while almost no one need actually exercise much of it. The plain truth is that, despite all the rhetoric to the contrary, the modern Supreme Court lacks a single consistent proponent of judicial restraint. For example, the modern Court has embarked on an ambitious program of revitalizing federalism and separation of powers limitations on the political branches; overseeing electoral districting; protecting property rights and the right to commercial speech; and invalidating affirmative action programs. Critics of the Court complain that these decisions are "activist," but many of these critics would, themselves, like to make the Court more activist in the protection of reproductive and sexual freedom, racial minorities, and political dissidents.

All of this suggests that the real fault line in contemporary constitutional argument is not between activism and restraint, but between styles of activism. While conservative activists would make the Court active so as to keep the rest of government passive, thereby leaving more space for free markets and individual decisionmaking, liberal activists would make the Court active so as to require more aggressive programs of government regulation and redistribution. To a significant extent, rhetorical attacks on judicial activism have served only to distract attention from this central disagreement.

Louis Michael Seidman
(2000)

(see also: Constitutional Theory; Courts and Social Change.)

Bibliography

Bickel, Alexander M. 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis, Ind.: Bobbs-Merrill.

Blasi, Vincent 1983 The Rootless Activism of the Burger Court. Pages 198–217 in Vincent Blasi, ed., The Burger Court: The Counter-Revolution That Wasn't. New Haven, Conn.: Yale University Press.

Bork, Robert H. 1990 The Tempting of America: The Political Seduction of the Law. New York: Free Press.

Dworkin, Ronald H. 1996 Freedom's Law: The Moral Reading of the American Constitution. Cambridge, Mass.: Harvard University Press.

Gunther, Gerald 1964 The Subtle Vices of the "Passive Virtues": A Comment on Principle and Expediency in Judicial Review. Columbia Law Review 64:1–25.

Rosenberg, Gerald 1991 The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press.

Sunstein, Cass 1996 Foreword: Leaving Things Undecided. Harvard Law Review 110:4–101.