“The real crisis in constitutional law is not judicial ‘activism’ but judicial passivism.”

Damon W. Root | June 8, 2009

The Institute for Justice's Jeff Rowes had a great op-ed in Saturday's Wall Street Journal explaining that both liberal and conservative judges are guilty of showing too much deference to the legislative and executive branches:

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference....

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Read the rest here. My case for a principled form of libertarian judicial activism is here.

[Via Randy Barnett] 

Comments

|6.8.09 @ 5:09PM|#

SCOTUS justices first have a worldview and then back into a judicial philosophy based on that personal prejudice.

See, Scalia, Antonin and pre-Vatican II.

|6.8.09 @ 5:15PM|#

SCOTUS justices first have a worldview and then back into a judicial philosophy based on that personal prejudice.

See, Scalia, Antonin and pre-Vatican II.

Ah, so shrike believes that Justice Scalia really, really wanted to make flag-burning legal, and then found a judicial philosophy that would view it as a form of free speech?

|6.8.09 @ 5:21PM|#

I don't give a fuck about flag-burning and neither does Scalia's hero in the weird hat.

|6.8.09 @ 5:38PM|#

What you are neglecting, Thacker, is that Scalia is an activist in the worst form - one for a Vatican theological basis.

His Archie Bunker type denial of such only cements this truth.

|6.8.09 @ 5:45PM|#

Since at least Roe courts may have adopted an attitude of deference to the legislative branch out of self-preservation. They are a favorite punching bag for certain politicians when they rule against those politicians' political orthodoxies.

Definitely agree that they should be more equal to the political branches and more assertive in interpreting law. There is something to be said about experience, intelligence, and familiarity with the law in governing, which is never a guarantee in the popularly elected branches.

The Angry Optimist|6.8.09 @ 5:54PM|#

shrike must have missed the part that said that liberals ascribe to judicial deference as well. An honest reading would be that Big-State Conservatives like deference, all liberals like deference and only moderates like O'Connor and Kennedy (despite their haphazard bona fides on liberty) are willing to have a skeptical view towards government power.

Even Clarence Thomas, who I like anyway, was insufficiently skeptical about Hamdi and the AUMF.

Gilbert Martin|6.8.09 @ 5:56PM|#

"The Institute for Justice's Jeff Rowes had a great op-ed in Saturday's Wall Street Journal explaining that both liberal and conservative judges are guilty of showing too much deference to the legislative and executive branches:"

Well I say that's still properly labeled as judicial activism - not passivism. The judges are actively mis-interpreting the Constitution to allow the other branches to do something they shouldn't be allowed to do. In a lot of cases, the judges personally approve of what the other branches are doing.

The Angry Optimist|6.8.09 @ 6:00PM|#

*eye roll*

Yeah, and in some cases, the Justices are "actively" choosing to follow precedent!

And sometimes, like "actively" get up in the morning and make themselves breakfast.

Goddamned judicial activists.

|6.8.09 @ 6:07PM|#

shrike must have missed the part that said that liberals ascribe to judicial deference as well. An honest reading would be that Big-State Conservatives like deference, all liberals like deference and only moderates like O'Connor and Kennedy (despite their haphazard bona fides on liberty) are willing to have a skeptical view towards government power.

Judicial deference? Big State Conservatism?

Don't know...

btw - I despise government "power". So I support the ACLU.

So I am very wary of Vatican/SCOTUS subterfuge.

I don't want a court with the Scalia/Alito/Mel Gibson mindset.

For that very reason I am suspicious of Mario Sotomayor. (the former Reds pitcher)

Anarchist|6.8.09 @ 6:08PM|#

Pacifist judges sound good to me.

Actually, what sounds even better to me, are free-market judges, operating as part of an independent legal market.

Who cares what a board of pompous state appointed judges in black dresses do?

Separation of state and law, it's sane.

Brandon|6.8.09 @ 6:11PM|#

Relying on the judiciary to defend rights from trampling by legislatures sounds nice in theory. But in practice they can be expected to stand up to the prevailing political and ideological winds for only so long. IMO, it's impressive that substantive due process lasted as long as it did.

The Angry Optimist|6.8.09 @ 6:14PM|#

Anarchist - I cannot wait until 50 of me and my comprades come and round you up and take your money.

Paul|6.8.09 @ 6:23PM|#

Pacifist government sounds good. I like my politicians having sex with interns and smoking crack. It's when they actually get to work that I start to get nervous.

|6.8.09 @ 6:23PM|#

TAO, be sure to say that it's for The Children when you do it. Split the money among your 50 friends and call them Czars of one kind or another. If someone else complains, ask them why they haven't moved if they hate this system so much.

|6.8.09 @ 7:02PM|#

I think part of the problem is that the whole term "activist" has become a Rorschach test that means "using a method of judicial decision-making that yields a result with which I disagree." My definition of judicial activism is when a judge ignores a law or creates a new law in furtherance of a policy or viewpoint to which he/she subscribes. However, invalidating a law because it's unconstitutional or restricting the executive's power because it exceeds that enumerated in the Constitution is not judicial activism in my book. If it is in yours then I guess I'm in favor of judicial activism. However, it's hard to debate something when everybody has a definition of what it is.

MattXIV|6.8.09 @ 7:14PM|#

Since at least Roe courts may have adopted an attitude of deference to the legislative branch out of self-preservation.

Earlier, although you're right about the self-presevation motive - FDR's court packing plan was the breaking point. Notice that we haven't had an attempted constitutional amendment adding new powers since that point while the two largest previous expansions of the scope of the federal goverment (income tax, prohibition) were pursued via the amendment process. The last power granting amendment to make it past congress was to allow Federal labor standards for workers under 18 in 1924 - for all the expansions of the federal gov't's role in the last 85 years they haven't even bothered to try to secure amendments.

|6.8.09 @ 7:27PM|#

TAO, Jaybird nails it. IOW, state and monopolization of the administration of justice do not equal order.

The Angry Optimist|6.8.09 @ 7:51PM|#

OK, LM, see you on the battlefield.

MNG|6.8.09 @ 8:04PM|#

"insufficiently skeptical about Hamdi and the AUMF."

I just re-read Hamdi the other day and that strikes me as a bit of an understatement...

"I do not think that the plurality has adequately explained the breadth of the President's authority to detain enemy combatants, an authority that includes making virtually conclusive factual findings."

The Angry Optimist|6.8.09 @ 8:11PM|#

In fairness, it depends on how you read the AUMF:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons...

MNG|6.8.09 @ 8:16PM|#

His analysis of the AUMF granting the authority in question was pretty much left to one line: "Indeed, the Court has previously concluded that language materially identical to the AUMF authorizes the Executive to "make the ordinary use of the soldiers … ; that he may kill persons who resist and, of course, that he may use the milder measure of seizing [and detaining] the bodies of those whom he considers to stand in the way of restoring peace." Moyer v. Peabody" And there strikes me as being quite a few grounds for distinguishing that case (for one thing the detention in that case had ended when the court examined the case, they were looking at essentialy a Sec. 1983 suit)...

MNG|6.8.09 @ 8:25PM|#

TAO
The problem is that Congress also seemed to have more specific statutes on point, such as the Non-Detention Act. I'm not convinced of Souter's reasoning that the NDA (which seems more on point than the AUMF and, iirc a rule of statutory construction is that more specific statutes trump more general ones when the conflict), but Thomas doesn't even mention it...

The Angry Optimist|6.8.09 @ 8:31PM|#

Of course, another element of statutory construction is that the newer governs the older. Thomas didn't feel the need to mention it because he felt that "killing folks" included "everything up to that point" and the AUMF was sufficiently specific on that point.

MNG|6.8.09 @ 8:39PM|#

I thought Souter's opinion to be more convincing on that point.

"It is fairly read to authorize the use of armies and weapons, whether against other armies or individual terrorists. But, like the statute discussed in Endo, it never so much as uses the word detention, and there is no reason to think Congress might have perceived any need to augment Executive power to deal with dangerous citizens within the United States, given the well-stocked statutory arsenal of defined criminal offenses covering the gamut of actions that a citizen sympathetic to terrorists might commit"

And

"Thirty-eight days after adopting the Force Resolution, Congress passed the statute entitled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), 115 Stat. 272; that Act authorized the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings, 8 U.S.C. § 1226a(a)(5) (2000 ed., Supp. I). It is very difficult to believe that the same Congress that carefully circumscribed Executive power over alien terrorists on home soil would not have meant to require the Government to justify clearly
its detention of an American citizen held on home soil incommunicado."

MNG|6.8.09 @ 8:41PM|#

Of course, it would just have been nice for Congress not to write such a crazy broad resolution and then Thomas would have had to argue that Bush had the Art. II powers to do this thing, and he would have for sure.

|6.8.09 @ 8:44PM|#

TAO, riddle me this:

At whose bidding were the several hundred million slain on the battlefield the last two centuries?

|6.8.09 @ 8:51PM|#

Given that the framers, as a whole, were utterly petrified of raw democracy, the courts should eschew notions of "comity" between the branches, and, instead, adopt a hostile attitude towards legislation and the legislature. You know, have some real separation of powers.

The Angry Optimist|6.8.09 @ 9:17PM|#

At whose bidding were the several hundred million slain on the battlefield the last two centuries?

you can trot this one out all you want, but what's irking about it is that, no matter how lawless "the state" in question is, you still call it "the state".

look, LM, you can either view the existence of a government as the only fact that never varies throughout history and is determined, or you don't. For me, I accept that somewhere, somehow, some way, people are going to govern other people. I don't have any particular interest in your vacuous, reflexive and dogmatic "points" that anarchists are so fond of making.

The fact is this: in a given geographical area, there will be one entity that has a monopoly of force. How that force is constrained and what institutional "checks and balances" we put on it are what's the important thing to argue about, not some floating abstraction anarchofantasy about how the Somalians really are doing better than Americans because they have no government.

robc|6.8.09 @ 10:00PM|#

shrike,

Mario Soto was the master of the circle change. He can be on the supreme court any time he wants.

|6.8.09 @ 10:56PM|#

The Constitution's framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

This is pious bullshit, sorry. The framers didn't intend for the SCOTUS to be the judge of the actions of state legislatures, and didn't even write the principle of judicial review into the Constitution in the first place.

While I would love it if economic liberties were actually protected by the constitution, IJ needs to realize they're operating in the fuzzy world of the 9th amendment, where any extraction of an unwritten right could reasonably be argued to be judicial activism.

Mike|6.8.09 @ 11:45PM|#

"The framers didn't intend for the SCOTUS to be the judge of the actions of state legislatures, and didn't even write the principle of judicial review into the Constitution in the first place."

If Marshall wasn't a founding father, he was pretty close.

"While I would love it if economic liberties were actually protected by the constitution, IJ needs to realize they're operating in the fuzzy world of the 9th amendment, where any extraction of an unwritten right could reasonably be argued to be judicial activism."

You don't need to extract unwritten rights for supporting economic liberties. All you have to do is realize that the constitution spelled out certain enumberated powers that the Federal government had, and that any power not enumerated belonged to the states or the people. Does the Federal Government have the power to set up a retirement program? Is it an enumerated power? No? Then the Federal Governmant cannot do it.

What really gets my goat is "stare decisis", the philosophy that the best way to deal with a mistake is to keep making it. Usually the people invking it are leftist judges wanting to preserve their favorite rulings, like Roe, but not willing to extend the principle to rulings they don't like, like Heller.

The Angry Optimist|6.9.09 @ 12:36AM|#

Mike - so what you're saying is, is that while the Federal Government has no power to set up a retirement plan, the Founding Fathers really wanted to let the states do that?

Besides, you have to leap the "interstate commerce" hurdle first. One thing at a time.

the innominate one|6.9.09 @ 1:37PM|#

"The framers didn't intend for the SCOTUS to be the judge of the actions of state legislatures, and didn't even write the principle of judicial review into the Constitution in the first place."

What the framers wanted with regard to limitations on the federal government over state powers became irrelevant once the incorporation doctrine came into play (not to mention the whole Civil War thingy).