So this is really interesting: The Court, according to John McGinnis, doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime. It’s job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings. And if what they were doing were “cognitive” in the sense of listening to reason, why do they so often divide 5-4 on the high-profile cases? All reasonable men and women should assent to the truth. when they hear it.
To gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.
That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”
The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor “judicial engagement” to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.
In his lucid and compressed account of the argument of Damon Root’s new book Overruled, the excellent libertarian judicial scholar Ilya Somin has done us the service of presenting in a pithy and powerful way the libertarian vision of the proper place of the Supreme Court in our constitutional system. The key conflict these days is between libertarians and (social) conservatives, and the key interpretive choice is between “originalism” and deference to legislatures.
Everybody knows that judicial activism is a bad thing. There was a time when liberals flirted with the idea of reappropriating the term and celebrating their newfound commitment to aggressive judicial action, but that time has passed. The Kennedy brothers thought it was a positive good that a potential nominee (Byron White) was “basically an activist.” Justice Arthur Goldberg thought of himself as a judicial activist. Legal theorist Ronald Dworkin began his career calling for “an activist court.”
When Justice John Paul Stevens retired from the U.S. Supreme Court in 2010, Senate Judiciary Chairman Patrick Leahy complained that “We have right now a very, very activist, conservative activist, Supreme Court. . . . I would hope that the president’s nominee can get us back away from that.” Leahy was, presumably, quite happy with the nomination of Elena Kagan to succeed Stevens.
In her short time on the bench, Justice Kagan has closely followed the voting pattern of Justice Ruth Bader Ginsburg. On the other hand, Justice Clarence Thomas has been singled out by Senator Leahy as one of the “most activist judges we have right now,” and by activist he meant judges who “would strike down a law passed by the people and substitute something of their own,” and Justice Samuel Alito has been denounced as a pivotal figure in the “divisive” and “activist conservative bloc” on the Roberts Court.
So which of these justices most often votes to strike down laws “passed by the people”? The answer is
A few months ago, Justice Ruth Bader Ginsburg explained why she needed to stay on the Court in part by claiming “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.” Justice Ginsburg was needed to help lead the dissenters and push back against judicial activism. It is a nice story, but has little relation to the truth. In fact, the Roberts Court has a credible claim to being the least activist Court in the history of the United States.
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them. Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.
Recently, I started following a constitutional law professor listserv for the first time in many years. The listserv is dominated by a certain form of liberal nonoriginalism that might be called activist. One justice who I believe reflects this approach was Justice Brennan, but some current members of the Court might be included in this group as well. This has gotten me thinking a bit about the methodology of activist liberal nonoriginalism.
What is striking about this approach is how much of an overlap there is between a person’s political views and his views on the meaning of the Constitution. This overlap is so strong that might wonder whether the content of constitutional law under this approach is simply one’s political views.
While the person’s political views are a first approximation of the content of constitutional law under this approach, I do think there are some constraints on constitutional law under this approach. First, the constitutional text might seem like a constraint, and in some cases (such as the Senate containing two Senators from each state) it does constrain. But, as anyone trained in these matters knows, one can derive a great many meanings from the words of the Constitution, especially if one accepts relatively loose derivations, as do practitioners of this approach.
Michael Ramsey and Chris Green have made thoughtful comments on The Originalism Blog on my post asserting a tension between original intent and judicial restraint. (Briefly, I argued that originalism does not necessarily entail restraint and might often counsel the opposite, so that judicial conservatives ultimately have to choose between them.)
Ramsey observes, persuasively, that the tension I asserted is equally a tension for liberals, who must also choose between their calls for a living constitution and judicial restraint; otherwise it is “hard to take their calls for judicial restraint seriously.” I agree. Many if not most calls for judicial restraint are opportunistic. That said, judicial conservatives who have argued most pointedly for tethering constitutional interpretation to foreseeable principle bear, I would argue, a particular burden not to succumb to that temptation.