Monday, December 14, 2015

Supremely Awful Arguments: Constitutional Nonsense (Part 4--"Activism")

Criticizing [that awful, illegitimate, undemocratic] "Judicial Activism"
(Yes, it's been a while. Corruption trials, the selection process for a new Chief Judge, commentary and presentations on that and the courts (i.e., lots of talking). That on top of classes, students, and a crazy, hectic semester overall. But, concededly, loving it all.)

Now, on to the nonsense about "judicial activism." That is, the customary condemnation of it.

It's as though the judicial branch is supposed to exercise its role halfheartedly. Less fully and vigorously than the other branches. Why has this nonsense--yes, again, it's nonsense--gained currency?

Are there stupid decisions? Yes. Deceptive decisions? Yes. Unintelligible decisions? Yes. Unsupported and unjustified decisions? Yes. But criticize the Supreme Court, or any other court, for vigorously--"actively"--exercising the judicial role? Especially when the judicial role is exercised in the service of fundamental principles of American free government?

Let's consider some of the most "activist" and, at the time, maligned decisions of the Supreme Court. And let's ask which ones were wrong? Which ones were illegitimate exercises of raw, unbridled judicial power that should be curbed? Which ones should be undone?

Brown v. Board of Education (1954): outlawing racial segregation.
That decision overruled precedent that had endorsed the "separate but equal" doctrine. (I.e., Plessy v. Ferguson [1896] and the numerous decisions that followed.)
That decision invalidated state laws that kept the races segregated.
That decision rejected a narrow, "restrained," "originalist" interpretation of the Constitution's 14th Amendment equal protection guarantee, which never would have been ratified in 1868 if its express intention was to end segregation.
That decision's companion (Bolling v. Sharp, decided the same day) invalidated segregation in the District of Columbia and the federal government generally, even though the Constitution's only equal protection clause explicitly applies only to the states.
That decision did what the Congress and many of the states were unable or unwilling to do through the democratic process.
That decision overturned the longstanding, societal status quo in this country.
That decision gave full force and effect to the constitutional principle of equal treatment, despite the equal protection clause's much more limited specific purpose.
That decision was so unpopular in many parts of the country that President Eisenhower had to send in the troops--including the 101st Airborne--to enforce it.

In short, that decision was as "activist" as an activist decision can be.
Does that make it a bad decision?
An illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?
An America without the Brown decision?

Let's try another.
Gideon v. Wainwright (1963): guaranteeing the right to counsel in all criminal trials.
That decision overruled precedent (Betts v. Brady [1942]) in which the Court had rejected any such right to the assistance of counsel in non-capital cases.
That decision invalidated state laws that guaranteed the assistance of a lawyer only when a defendant faced the death penalty or in other limited circumstances.
That decision extended the term "due process"--applicable to the states through the 14th Amendment--to include the right to counsel in all criminal cases, even though that Amendment does not mention any such guarantee.
That decision gave full force and effect to the right to counsel as a fundamental right, recognized by Justice Cardozo in dictum in Palko v. Connecticut (1937) as being implicit in the American scheme of ordered liberty, because essential to fairness in criminal prosecutions.
That decision was extremely unpopular in several states, especially in the South, and was among the series of criminal justice rulings in the 1960's for which "law and order" politicians condemned the Court as being activist, pro-criminal, and violative of state prerogatives.

Another bad activist decision?
Another illegitimate exercise of the judicial role?
Would this country have been better off without it?
Should that decision be undone?

And what about this next one?
Loving v. Virginia (1967): guaranteeing the right to marry to interracial couples.
That decision overruled precedent (Pace v. Alabama [1883]) in which the Court had upheld laws that criminalized marriage and sexual relations between whites and non-whites.
That decision invalidated state laws (16 such anti-miscegenation statutes in the South), such as Virginia's so-called "Racial Integrity" law, which the couple had violated in this case.
That decision was another that rejected a narrow, "restrained," "originalist" interpretation of the 14th Amendment's equal protection guarantee, which never would have been ratified in 1868 if its express intention was to allow interracial marriage.
That decision overturned the longstanding, societal status quo in the Southern states and, as a de facto matter, in much of the country.
That decision contravened "states rights."
That decision was contrary to overwhelming public opinion in the country, with only 20% approving marriage between blacks and whites at the time (according to Gallup).

Another one of those bad, illegitimate, activist decisions?
Country would be better off without it?
Should be undone?

What about these--just to mention a few more that make (what I believe to be) the incontrovertible point?
Pierce v. Society of Sisters (1925): protecting parents' right to send their children to private religious schools rather than public ones--interpreted "due process" and "liberty" to include the right of parents to raise their children, which the Constitution nowhere mentions; invalidated all state laws requiring that children attend public, not private schoolssimultaneously overrode the popular anti-immigrant sentiment (white supremacist, anti-Catholic, anti-Semitic, etc.) underlying those laws; rejected the claimed power of states to dictate all education retirements; disregarded (and effectively overruled) precedents that the 14th Amendment did not protect any implicit rights or liberties against state governments.
NAACP v. Alabama (1958): protecting the right to associate with others--invalidated state laws interfering with the freedom to join groups with like-minded persons; recognized a freedom of association nowhere mentioned in the Constitution; broadly interpreted free speech as including a fundamental right to associate with others for the purpose of advancing beliefs and ideas; broadly interpreted "liberty" and "due process" in the 14th Amendment as including such rights to be applicable against the states; in short, recognized an unenumerated  right to join groups with like-minded individuals.
Reed v. Reed (1971): invalidating gender discrimination against women--overruled a long line of precedents (e.g., Bradwell v. Illinois [1973], which allowed states to prohibit women from becoming lawyers);  invalidated countless state laws that treated women unequally; rejected a narrow, "restrained," "originalist" interpretation of the equal protection guarantee; rejected the longstanding, societal status quo that confined women to traditional roles; and effectively adopted the gender equality mandate of the ultimately-failed ERA (Equal Rights Amendment) as a matter of constitutional case law.
Lawrence v. Texas (2003): recognizing the right of adults to engage in consensual sex in private, absent some counterbalancing legitimate government interest--invalidated state laws that criminalized "sodomy" (i.e., anything but vaginal intercourse), based solely on moral, religious, and biblical condemnation; overruled precedent (the shameful Bowers v. Hardwick [1986] decision) that had upheld such "sodomy" laws as applied to same-sex couples, again based solely on moral, religious, and biblical condemnation; rejected a narrow, "restrained," "originalist" interpretation of "liberty" that would limit it to freedom from physical restraint; rejected popularly enacted restrictions on intimate private conduct, absent some legitimate government/societal interest in health, safety, or welfare.
(Yes, there are those who view homosexuality as wrong for moral, religious or other reasons, and those who support laws against homosexual conduct. But whatever one's views on that specific issue, the sole principle enforced in the Lawrence decision--that the government has no business interfering with the most private aspects of our lives without some good reason--is nothing less than one of the essential foundations of American free society.)

And there are countless other examples where the Court gave effect to what we cherish most about being American. Rights that we take for granted today, but which became reality only because of "activist" decisions that were typically unpopular at the time.

Make no mistake, "activist" decisions are hardly confined to politically liberal outcomes. Just a couple of recent ones (actually 3) makes the point.
Citizens United v. Federal Election Commission (2010): recognizing a right to finance the production and distribution of a political communication--invalidated federal law (and similar state laws) that limited independent campaign spending; overruled precedent that had approved campaign finance restrictions; rejected a narrow, "restrained," "strict" interpretation of the 1st Amendment's protection of "speech;" protected spending money on political communications as a 1st Amendment right; repudiated popular and democratically enacted measures intended to curb campaign corruption.
McDonald v. City of Chicago (2010) and District of Columbia v. Heller (2008): recognizing an individual right to bear arms assertable against the federal and state governments--invalidated numerous federal and state laws limiting gun ownership; overruled precedent that had confined gun rights to the context of state militias and that held that 2nd Amendment rights were not assertable against state governments; broadly interpreted "liberty" and "due process" in the 14th Amendment as including individual gun rights.

One more thing about which to make no mistake. Whatever one might think about the foregoing politically conservative examples of judicial activism, there are certainly "activist" decisions that are part of the junk heap of discredited rulings. Just as "activism" doesn't necessarily result in a bad decision, it hardly insures a good one either.

A few examples? Check these out.
Lochner v. New York (1905): denying the power of states to adopt health regulations setting maximum hours for workers--invalidated New York's (and by implication any other state's) health laws that limited the number of hours employees [in this case, bakers] could work; broadly interpreted "liberty" and "due process" in the 14th Amendment as including the "right of free contract" that largely prevented states from regulating working conditions; repudiated the health concerns underlying the law that had been affirmed by the state's highest court.
(N.B., Justices John Marshall Harlan and  Oliver Wendell Holmes each wrote dissenting opinions and, for that and other reasons, it is not surprising that this decision was eventually overruled.)
Hammer v. Dagenhart (1918): denying the power of Congress to place limitations on child labor--invalidated the federal Child Labor Act of 1916 that enforced restrictions on child labor; adopted a novel, tortured reading of the interstate commerce power as not reaching manufacturing; rejected popular, democratically enacted health and safety protections for children, in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and another dissent of Justice Holmes was vindicated.)
Adkins v. Children's Hospital (1923): denying the power of government to set minimum wages--invalidated the federal (and by implication any state's) law setting minimum wages for workers; broadly interpreted "liberty" and "due process" in the 5th Amendment as including the "freedom of contract" that largely prevented the federal government from regulating working conditions; adopted a tortured distinction between the (by then) accepted governmental power to set maximum hours and the disallowed power to set minimum wages; rejected popular, democratically enacted labor protections [in this case for women and children] in the interest of protecting business freedom.
(N.B., this decision too was eventually overruled and yet another dissent of Justice Holmes was vindicated.)

Finally, the point of all this is that the judicial "activism" argument is nonsense. Whether a decision is "activist" or not does not necessarily have a whit to do with whether it's a good or bad one, wise or foolish, enduring or fleeting, cherished or discredited.

A judicial decision may overrule precedent or not; may invalidate legislation or not; may be contemporaneously popular or not; may adopt a strict or "loose" interpretation, a traditional or novel one; etc., etc., etc. But none of those characteristics of "activism" or "restraint" are very helpful in assessing a judicial decision. Decisions with any combination of those qualities may be good ones or bad ones.

As is usually true for most serious matters, the whole question cannot be resolved with simplistic dichotomies. I did my best to address the matter a few years ago.  I'm not sure I can improve upon my admittedly unoriginal and not wholly satisfactory sentiments at the time. So, in conclusion, here they are:
To deny that bold exercises of judicial activism have produced some of our proudest and wisest either blind ideology, woeful ignorance, or some other specie of nonsense. The American experience with judicial review emphatically demonstrates that activism and restraint are not helpful as dividing lines between good and bad judges, worthy and flawed decisions. 
[W]hen we talk about judges, when we talk about decisions, the qualities that count are wisdom, foresight, discretion, a sense of history, an appreciation of the possible, pragmatism, fairness to the parties, promotion of the common good, and dedication to the fundamental principles of the American constitutional republic. That, of course, is what judging is all about; those are the kinds of qualities that make a good judge and a worthy decision. 
(Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense, Albany Law Review, Vol. 68, No. 3, 2005 [])