06/14/2012 02:45 pm ET Updated Aug 14, 2012

Abolish the Phrase 'Judicial Activist'

The Supreme Court is in its home stretch for this year, with decisions coming up

on whether a number of important federal and state laws, in addition to the Affordable

Care Act, are constitutional. Once the decisions are announced, there are certain to be

cries of "judicial activism" no matter which way they come up. Traditionally, that

charge has been leveled at the so-called liberal wing of the Court, but a ruling last week

in the little-noticed case of Armour v. City of Indianapolis show how misleading that

stereotyping can be and how little it helps in assessing Court decisions.

For many years, the City of Indianapolis had financed its sewer projects by

assessing affected homeowners, who were given a choice of paying the assessment all at

once or in installments, with interest. The City decided to change financing methods and

also to forgive the future installments under the prior plan, but not to give refunds of even

a portion of the amounts paid by those owners who anted up the full 100% (and got a full

tax deduction right away). Those owners sued, claiming that their treatment was so

unfair that it violated the Equal Protection Clause of the Constitution.

The Supreme Court agreed with Indiana Supreme Court and sustained the City's

decision not to grant refunds, with Justice Stephen Breyer writing for a majority of six.

As they saw the case, when dealing with taxes and other purely economic matters,

governments at all levels have very considerable leeway in allocating benefits and

burdens, and the decision not to refund approximately $300,000, in the face of other

pressing city needs, to a group of people who were plainly not poor, since they were able

to afford to pay more than $9,000 all at once, was constitutionally acceptable. In his

dissent, Chief Justice John Roberts, joined by fellow conservative Justices Antonin Scalia

and Samuel Alito, saw the case differently. In their view, the discrimination was so

severe that it violated Equal Protection because there were several readily available

methods for the City to deal with the problem that would have eliminated what they saw

to be fundamental unfairness.

If I had been on the Court, I am not sure which way I would have voted. Either

way, the outcome is of no great significance in the overall scheme of constitutional

adjudications, in part because the facts are unlikely to be repeated frequently, if at all.

Moreover, the notion that some economic laws may violate Equal Protection is

something that all Justices could support in at least some cases. The only question in

Armour was whether the Court should step in to overrule the democratic processes, as the

dissent voted, or let it stand, which was what the majority did.

Based on their willingness to second-guess the elected officials in Indianapolis,

the dissenters could be labeled judicial activists, despite their reputations as conservative

jurists. But being a judicial activist must mean something more than voting to overrule

the political branches, because every Justice now on the Court or who ever held a seat

there has done that on some occasion. Does anyone today consider Brown v. Board of

Education an example of unwarranted judicial activism, despite its overturning the actions

of state and local governments across the country? Moreover, the phrase surely must

mean more than that the person applying it disagrees with the outcome in the case. The

difficulty in trying to define the term is there are no clear lines to assist the Justices in

deciding whether to let a law stand or strike it down. Words like "Equal

Protection," "Due Process of Law," "Freedom Speech and Religion," and "regulation of

Interstate Commerce" have no fixed meanings against which laws can be measured.

In some cases, such as laws that disadvantage racial or religious minorities, or

that penalize those who criticize the government, or in which a state's laws uniquely

burden out-of-state businesses and individuals, the need for courts to step in is generally

accepted. In others the need for judicial intervention is less obvious, and there are often

good reasons to leave the decision to the political processes.

The one thing that is clear is that calling Justices "judicial activists" is a poor

substitute for doing a careful analysis of their opinions and trying to assess whether the

decision to overturn a law -- or to let it stand -- was appropriate under all the

circumstances. Abolishing the term judicial activist would be a good first step in that


The writer is the Lerner Family Associate Dean for Public Interest Law at George Washington Law
School, where he teaches constitutional law.