Last week, President Obama offered some reflections on judicial activism. (See "Obama Says Liberal Courts May Have Overreached"). The President suggested that activist judges "ignore the democratic process" and "impose judicial solutions on problems instead of letting the process work itself through politically." He added that whereas liberal judges tended to engage in judicial activism in the 1960s and 1970s, today it is conservative judges who are most often "guilty" of judicial activism.
The President was quite right to point out that, in cases like Citizens United, which held unconstitutional a federal law regulating corporate campaign expenditures, conservative judges are just as activist today as liberal judges were in the past. This is an important observation. For several decades now, conservatives have attacked liberal judges for being activist, while characterizing conservative judges as exercising judicial restraint. As the President made clear, this is a false dichotomy that has seriously distorted public understanding.
It was less clear from the President's remarks, however, whether he meant to describe judicial activism as inherently illegitimate, or whether he meant to say that only some instances of judicial activism are improper. The difference is critical. To the extent he meant to suggest the former -- by saying, for example, that liberal judges were "guilty" of judicial activism in the past and that conservative judges are making "the same error" today -- I must respectfully disagree. Like judicial restraint, judicial activism is neither inherently good nor inherently bad. Rather, the degree of activism or restraint that is appropriate in any given case depends on the issue before the court.
Consider two laws. The first prohibits the use of loudspeakers in a residential neighborhood after 10:00 p.m. The second forbids anyone to criticize President Obama. Both laws raise issues under the First Amendment. Because the first law does not seriously threaten core First Amendment values, a judge should properly exercise restraint in considering its constitutionality and grant considerable deference to the legislative judgment. Because the second law more seriously threatens core First Amendment values, a judge should take a more activist approach and scrutinize the law more rigorously.
If the President meant to imply that judicial activism is invariably in "error," then he seems to have fallen for the line conservatives have been espousing ever since the days of Richard Nixon: judicial restraint is good, judicial activism is bad. But just as undue judicial activism can intrude improperly on the legitimate authority of the other branches of government, undue judicial restraint can abdicate a fundamental responsibility of the judiciary. Indeed, undue judicial restraint would have led to the "wrong" result in a long line of historic Supreme Court decisions, including most famously Brown v. Board of Education. Thus, although President Obama was right to point out that conservative justices often engage in judicial activism, he was mistaken insofar as he meant to suggest that judicial activism is presumptively in "error."
The critical challenge, then, is to determine when judicial activism and judicial restraint are appropriate. This is a fundamental and deeply complex question of constitutional law. In my view, though, judicial restraint ordinarily should be the default position of the judiciary. That is, the general presumption should be that the democratically-elected branches of government act constitutionally.
But this presumption falls by the boards, and judicial activism is appropriate, when the challenged government action either (1) harms a group that is unlikely to have its interests fully and fairly represented in the democratic process, or (2) directly impedes the free and effective operation of the democratic process itself. Although this vastly over-simplifies the point, it is at least a useful starting point for assessing the legitimacy of judicial activism, which is designed largely to correct for serious democratic dysfunction.
With this understanding, it is worth considering the use of "judicial activism" in the 1960s and 1970s, during the heyday of the Warren and Burger Courts, which the President said had been "guilty" of judicial activism. Here are some illustrative decisions for your consideration:
Mapp v. Ohio (1961): In order to eliminate the incentive for police to violate the Fourth Amendment, the Court held that evidence seized by the police in an unconstitutional search or seizure cannot be admitted at trial by the prosecution.
Engel v. Vitale (1962): In light of the First Amendment's guarantee that government "shall make no law respecting an establishment of religion," the Court held that public schools cannot constitutionally promulgate prayers to be recited by their students.
Gideon v. Wainwright (1963): To enforce the Sixth Amendment's guarantee that "in all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence," the Court held that the government must provide court-appointed counsel for defendants who are too poor to retain counsel of their own.
Reynolds v. Simms (1964): The Court held that a state cannot constitutionally create legislative districts with many times the number of citizens as other districts, because the Equal Protection Clause embodies the principle of "one person/one vote."
Harper v. Virginia Board of Elections (1967): The Court held that a state cannot constitutionally charge voters a poll tax as a condition of exercising the right to vote.
Loving v. Virginia (1967): The Court held that a state cannot constitutionally prevent a persons of different races from marrying.
Katz v. United States (1967): The Court held that wiretapping constitutes a "search" within the meaning of the Fourth Amendment, even though it does not involve a physical intrusion into a person's home.
Goldberg v. Kelly (1970): The Court held that, under the Due Process Clause's guarantee that no State may "deprive any person of life, liberty, or property without due process of law," the government cannot constitutionally terminate a person's welfare benefits without first granting him a hearing to determine the legality of the termination.
New York Times v. United States (1971): The Court held that the government could not constitutionally enjoin the New York Times and the Washington Post from publishing excerpts from the Pentagon Papers that revealed how the government got the United States into the war in Vietnam.
Wisconsin v. Yoder (1972): The Court held that, in light of the First Amendment's guarantee that government may not abridge "the free exercise of religion," a state could not constitutionally prohibit Amish parents from withdrawing their children from the public high schools when they have a sincere religious reason for doing so.
Furman v. Georgia (1972): The Court held that because the death penalty was being enforced in an arbitrary and capricious manner, its continued use could not be squared with the Eighth Amendment's prohibition of Cruel and Unusual Punishments.
Frontiero v. Richardson (1973): The Court (actually, only a plurality) held that discrimination against women is presumptively unconstitutional under the Equal Protection Clause.
Roe v. Wade (1973): The Court held that a woman's right of privacy in controlling her own body precludes the state from forbidding her to terminate an unwanted pregnancy.
All of these decisions exemplify judicial activism. Reasonable people can surely disagree about the "right" outcomes in these cases. But, in my view, these decisions are, on the whole, testament to the legitimacy of judicial activism as a proper and, indeed, necessary mode of constitutional interpretation -- in the right set of circumstances. I hope and trust that, at least in general, President Obama did not mean to suggest otherwise.