Every day we hear that the Roberts Court is completely out of control. Why, they’re the most activist Court in history! Ruth Bader Ginsberg herself said so.
Well, someone must have been asleep at the switch at the New York Times because they let Adam Liptak go out and, you know, get the facts:
If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.
Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.
The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.
But these decisions are outliers when measured against the court’s overall record over the last nine years.
The stats are pretty clear. The Warren Court overturned twice as many laws per year as the Roberts Court has — some of them very big decisions that significantly changed American law. Both the Burger and the Rehnquist Courts were far more activist than this one. No matter how you slice it, this Court is deferring to legislatures more than any court has in the last half century.
Indeed, there is a new school of criticism — one that includes some voices from the right, where judicial restraint was once part of conservative legal orthodoxy — that says the Supreme Court is not activist enough.
In a recent essay, “Why We Need More Judicial Activism,” Suzanna Sherry, a law professor at Vanderbilt University, said the Supreme Court had erred more often in sustaining laws than in striking them down. “Too much of a good thing can be bad,” she wrote, “and democracy is no exception.”
In a new book, “Terms of Engagement,” Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. “It is implausible,” he wrote, “to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.”
We’ve spoken of that here, not just on the Obamacare decision, but on civil liberties and property rights. And when I look over the history of the Court, the worst decisions it has made has not been when it has struck down laws or rewritten them but when it has failed to strike down laws and protect our liberties. The Gold Clause Cases, Kelo, Raich v. Gonzales, Miller … the running thread is the Court refusing to stop the advance of government power. (A good read on this is Bob Levy and Chip Mellor’s book The Dirty Dozen).
When examining whether a Court is acting properly, the question shouldn’t be simply how often they strike down a legislative act, or a law passed via referendum such as Proposition 8. For a whole host of reasons, that definition ignores the fact that the legislature, and the people acting via referendum, can and do quite often get things wrong in the sense that they step outside the proper boundaries of their powers, or act in a manner that violates the rights of a particular minority. Instead, the question ought to be the extent to which the Court is performing the functions for which was created, which include not just interpreting existing law in the light of the Constitution (Federal or state depending on the circumstance) but also acting as a check against the Legislative and Executive Branches.
This is where the form of “judicial restraint” that Bork and others have advocated, which boils down to nothing less than Judicial surrender to nearly unbridled majoritarianism, gets things wrong. While Courts should give some due degree of deference to a law that has been passed by Congress or a state legislature, they should not be so slavishly willing to accept its validity that they reject out of hand perfectly valid arguments against those laws. Adopting the second position would essentially reduce Courts to nothing more than rubber stamps for democratic majorities, which is clearly not what the Founders intended the Federal Judicial Branch to be and, quite clearly, not what the Judiciary as it developed under the Common Law system that we inherited from Great Britain was ever intended to be.
(For conservatives, the main issue with judicial activism is Roe v. Wade (and Griswold before it) which they see as having established a right to privacy that didn’t exist. I’m not going to wade into those waters today.)
That the Roberts Court is an activist abomination has become an article of faith on the Left. But most of that boils down to the Court striking down laws that they like instead of laws that conservatives like. None of them screamed judicial activism when the Court struck down parts of DOMA. In fact, many of them agitated — in the lazy-ass 21st century way of changing their Facebook profiles — precisely for the Court to be activist on that matter.
To me, the whole “activism v. restraint” debate is nonsense. Ultimately, every SCOTUS case boils down to whether a law violates the Constitution. A law that does need to be struck down. Period. I think debating the constitutionality of those laws is much more important than any Sunday chat show debate about “judicial activism”.