THE BLOG
10/18/2013 03:55 pm ET Updated Jan 23, 2014

Idiots, Maniacs and the Problem With Judicial Activism

The eternal debate over "judicial activism" reminds me of the great George Carlin line: "Have you ever noticed how anyone driving slower than you is an idiot, and anyone driving faster than you is a maniac?"

In the U.S. v. Windsor case (2013), Justice Antonin Scalia, who sees judicial activism everywhere except in the mirror, railed against Justice Anthony Kennedy and his other colleagues in the majority for striking down the anti-gay discrimination at the heart of the Defense of Marriage Act. Summoning up the fervor of the long-suffering anti-judicial activist, he denounced the "assertion of judicial supremacy over the people's Representatives in Congress and the Executive," attacked "a Supreme Court standing (or rather enthroned) at the apex of government," and solemnly invoked "We the People, who created [Article III] as a barrier against judges' intrusion into their lives."

Stirring populist rhetoric!

You never would have known that the day before Justice Scalia had voted, in Shelby County v. Holder, to join Chief Justice John Roberts and the conservatives in striking down a major and critical section of the Voting Rights Act, one of the most significant laws in American history, which was first passed in 1965 and was reauthorized in 2006 by a vote of 98-0 in the Senate and 390-33 in the House. Here the royal King-Justices asserted the prerogatives of "judicial supremacy" to put the cowardly dolts in Congress and the Executive back in their place.

Reading between the lines of Scalia's always fascinating prose, the message seems clear: Anyone who votes to strike down anti-gay laws as a violation of Equal Protection is a maniac, and anyone who votes to uphold voting rights laws as a reasonable exercise of Congress' power under the Fourteenth Amendment is an idiot.

Efforts to find solid ground in this debate by quantifying "judicial activism" are understandable but ultimately off-point and futile. In his October 12, 2013 article, "How Activist is the Supreme Court?," New York Times Supreme Court reporter Adam Liptak invoked statistics to show that the Roberts Court had struck down, as a portion of its overall caseload, a smaller percentage of federal, state and local laws (3.8 percent) than did the Rehnquist Court (6.4 percent), the Burger Court (8.9 percent), and the Warren Court (7.1 percent). Thus, the Roberts Court is less judicially activist.

Well, sure, if we define "judicial activism" as simply striking down laws. But this methodology, which undoubtedly has the virtue of clarity, tells us essentially nothing. Since all Justices, at least since Marbury v. Madison (1803), have embraced and used the power of "judicial review" to strike down unconstitutional laws, the only interesting question is which laws they choose to strike down and why. Are they voting to strike down the Voting Rights Act or DOMA? The Missouri Compromise, as the racist Taney Court did in the Dred Scott decision (1857), or state Jim Crow school laws, as the Warren Court did in Brown v. Board (1954)? The Violence Against Women Act's civil remedies provision, as conservatives did, or the law excluding women from the Virginia Military Institute, as liberals did (and Justice Scalia did not)? The District of Columbia's handgun control law and the Gun-Free School Zones Act, as conservatives did, or laws making gay sex and abortion a crime, as liberals have? What matters centrally is the substance of the Justices' positions on the existence of constitutional rights, not how many times they struck down offending statutes.

I suppose there will be no solution to the combat over "judicial activism" since the sin exists in the eye of the beholder and everyone knows it when they see it. Justice Scalia defines judicial activism as enforcing rights that do not appear in the text of the Constitution. I would define it as illegitimate interference by the Court in the processes of political democracy. This definition makes the ten year period that began with Bush v. Gore (2000) (shutting down a manual recount of ballots in Florida in the name of Equal Protection and preventing more than 100,000 ballots from being counted) and ended with Citizens United (demolishing the wall of separation between corporate treasury wealth and political campaigns) a decade of intense judicial activism. And the Roberts Court appears to be just warming up.

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