Humility. Modesty. Restraint.
These words appear again and again in the transcripts of recent Supreme Court confirmation hearings. Confirmation hearings follow a predictable pattern: Supreme Court nominees are asked pointed questions about the purportedly pressing problem of "judicial activism"; in response, nominees emphasize their willingness to defer to the political branches, sing the praises of democracy, and promise that they can be counted upon to rarely (if ever) say "no" to the people's representatives. One could be led to believe that what scholar Alexander Bickel referred to as the "passive virtues" are the only virtues that Supreme Court justices ought to possess.
This near-exclusive focus on the passive virtues in selecting justices is profoundly mistaken. While justices must restrain themselves from imposing their personal philosophies on the text of the Constitution, they also must restrain government officials from imposing their will on the rest of us, in contravention of the law of the land. And they will not be able to do so if they meekly defer to those officials or acquiesce to a constitutional law status quo under which reflexive judicial deference is required in many constitutional settings.
Enforcing constitutional limits on government power in the face of tempestuous political winds is not an easy thing to do, nor is challenging prevailing jurisprudence. As we look towards the very real possibility that the next President of the United States will have an opportunity to nominate several Supreme Court justices, it is critically important to focus attention on a judicial virtue that has been neglected of late: Grit, that is, firmness of mind in the face of adversity.
While Supreme Court justices are appointed rather than elected and are thus relatively insulated from short-term political pressures, they are also easy targets for criticism for precisely that reason. The "unrepresentative" character of the judiciary is often thrust in the justices' faces; justices risk being denounced as black-robed despots when they hold that the government is constitutionally forbidden from taking a particular action. Politicians of various stripes have ascended to office by running against particular decisions, and even now seek to do so. And few can be counted upon to defend the Court when it invalidates exercises of government power supported by overwhelming legislative majorities.
But a Court that enforces a countermajoritarian Constitution will inevitably find it necessary to say "no" to the political branches and stand athwart popular opinion. Justices must be willing to act, as James Madison put it, as "guardians of [our] rights" when the chips are down and the stakes are high. Engaging in disciplined, logic-guided inquiry into the meaning of abstract concepts like "equal protection of the laws" or "freedom of speech" or "due process of law" is a difficult endeavor. More difficult still is applying those concepts in complex, fact-intensive cases. And impartial, truth-seeking judicial engagement takes grit. Justices must be prepared to face widespread criticism from powerful politicians (including the President), widely-respected and influential public figures, the press, their colleagues, their friends, and even total strangers.
Some of the Court's most consequential and -- at least today -- widely celebrated decisions showcase the importance of judicial grit. Consider Brown v. Board of Education and Bolling v. Sharpe, in which the Court held "separate but equal" public education to be inherently unequal and unconstitutional, and Loving v. Virginia, in which the Court struck down prohibitions on interracial marriage. Or Escobedo v. Illinois, holding that criminal suspects cannot be denied access to their lawyers during police interrogations. Yet another example: United States v. Nixon, holding that the President had to comply with a court order to produce audio tapes that were demonstrably relevant to a criminal investigation into the Watergate affair. Finally, there is Texas v. Johnson, invalidating a law that made it a crime to desecrate the American flag. None of these decisions would have been possible had the Court failed to assert its rightful authority to say what the law is and bind other government officials to its judgments.
And yet, the supposed scourge of "judicial activism" has been so long derided by commentators across the political spectrum that the value of judicial grit has been obscured. The amount of time and energy devoted to activism during Supreme Court confirmation hearings reflects an apparently widespread belief that the wrongful judicial invalidation of legislation is the problem confronting the judiciary today. Any judicial nominee who proclaims her willingness to block democratically enacted legislation risks being branded as an activist and seeing her nomination go down in flames.
This focus on activism is unwarranted and counterproductive. Frankly, the claim that the Court is striking down far too many laws taxes the credulity of the credulous. Between 1954 and 2002, the Court struck down less than two-thirds of one percent of all laws passed by Congress and less than one-twentieth of one percent of all state laws. In any given year, it strikes down three out of every five thousand state and federal laws.
In vast areas of public policy, including business operation, property ownership, and land use, the Court makes no effort to enforce the Constitution, applying a so-called "rational basis test" that serves only to rationalize judicial neglect of rights that the Court considers less equal than a handful of rights deemed "fundamental," like speech and travel, and other exercises of personal liberty that the Court has shown particular solicitude for without dubbing "fundamental." The result: An incoherent and indefensible jurisprudence that is the product, not of judicial cowardice, but (among other things) a mistaken sense of institutional responsibility to defer to legislative and executive officials unless the Constitution unambiguously commands otherwise.
Thus, Americans are free to advertise their businesses, but not free to operate them without being subjected to self-serving protectionist schemes (poorly) masquerading as health and safety regulations. Americans are free to be sexually intimate with other consenting adults in their own homes--but their homes can be taken and given to other owners in the interest of "economic development." The focus on judicial activism at confirmation hearings thwarts a valuable opportunity to educate citizens about a status quo of unprincipled judicial abdication and the need for Supreme Court justices who have the grit to challenge it.
Judge Learned Hand, an early advocate of "judicial restraint," once said, "The spirit of liberty is the spirit which is not too sure that it is right." Hand's insight contains an important truth for judges: Judges must recognize that they are fallible. But if judges are to fulfill their constitutional duty, they must not allow the other branches to act as judges of the constitutional limits of their own powers or submit without protest to effectively unchecked government power over wide areas of American life. Care should be taken to ensure that the next Supreme Court justice is not so "humble" or "modest" as to be unwilling to protect our liberty.