Into the Thicket

From habeas corpus to the Second Amendment, an activist Supreme Court just helped secure our rights


In a celebrated 1958 lecture delivered at Harvard University, federal appeals court judge and noted legal scholar Learned Hand famously likened the United States Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the separation of powers and compromise the very idea of democratic rule. "When I go to the polls," Hand observed, "I have a satisfaction in the sense that we are all engaged in a common venture." Were the Supreme Court to have the final say on every political question, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."

Fast-forward half a century to the recent conclusion of the Court's 2007-2008 term, and you'll find Hand's complaint is still alive and well on both sides of the aisle. For instance, former Republican Rep. Tom DeLay (R-Texas) responded to Boumediene v. Bush, which recognized habeas corpus rights for prisoners held as enemy combatants at Guantanamo Bay, by arguing that the Court "has declared itself the final authority on making war, incarcerating enemy combatants, and, indeed, on the American people's right to self-government." In short, "this is not judicial activism. It is judicial tyranny."

Though he employed a necessarily lighter touch, Chief Justice John Roberts took much the same line, criticizing the Boumediene majority in his dissent for needlessly and arrogantly substituting its "unelected, politically unaccountable" views for those of "the people's representatives." According to Roberts, "one cannot help but think…that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants."

On the other side of the ideological divide, Justice John Paul Stevens was busy chastising the Court's conservatives for entering the "political thicket" of gun control in District of Columbia v. Heller, where the majority struck down Washington, D.C.'s sweeping handgun ban and held that the Second Amendment protects an individual right to keep and bear arms, a decision that Stevens found deeply troubling. "No one has suggested that the political process is not working exactly as it should," he wrote, employing language long associated with the case against judicial activism. "It is, however, clear to me, that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."

As it happens, Roberts and Stevens each have a valid point. In both the habeas corpus and Second Amendment decisions, the Supreme Court did nullify popularly enacted legislation, overruling the expressly stated preferences of lawful representatives and other public officials. And it's a good thing that the Court did. With the Bush administration asserting the "inherent" authority to wage war and detain certain prisoners indefinitely without trial, and with Congress apparently more than willing to cede these and other war powers to the executive branch, it was the Court's basic constitutional duty to act as a check against such abuse.

By the same token, with Washington, D.C.'s notoriously inept local government perfectly willing to leave law-abiding residents unarmed and thus unable to defend their own homes, the job of restoring the Second Amendment's lost liberties necessarily fell to the judiciary. In both cases, the Court simply undertook what James Madison had in mind when he described the judicial branch as "an impenetrable bulwark against every assumption of power in the legislative or executive." Judges, in other words, are supposed to strike down unconstitutional laws and to discipline overreaching officials. That's true whether such laws are popular with a majority of people or not. And dangerous laws only get worse when they're embraced by the population.

If anything, the courts today should be striking down far more laws than they do. Indeed, if there is one common thread to the Supreme Court's history, it's the fact that its worst decisions have centered on deference to government action, not on hostility to the will of the majority. For instance, there was Plessy v. Ferguson (1896), where the Court upheld Louisiana's Jim Crow railroad regulations; Korematsu v. United States (1944), where the Court upheld Franklin Roosevelt's wartime internment of Japanese Americans; and Kelo v. City of New London (2005), where the majority upheld that Connecticut municipality's abuse of its eminent domain powers. A little judicial activism in such cases would have gone a long way towards protecting individual liberty.

Which brings us back to the present. One of the most important things to take away from the Court's most recent term, evident in decisions ranging from Boumediene and Heller to Davis v. Federal Communications Commission, where the majority struck down parts of the Bipartisan Campaign Reform Act for restricting political speech, is that the vigorous use of judicial review isn't just legitimate, it's necessary to help safeguard our rights.

Damon W. Root is an associate editor of reason.

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  1. One of the primary purposes of the judicial system is to thwart the will of the people when the majority decides to oppress the minority.

    You can tell the system is working properly when lots of people in the mainstream are pissed off at the courts.

  2. The Second Amendment was added as a check on federal power over the states. Madison’s quote applies to the federal judiciary checking the power of the Congress and the President, not the power of local legislators.

    Conservative judges in the 19th century grabbed onto the 14th amendment as a way of preventing the states from enacting legislation they didn’t like, and liberal judges returned the favor in the glory days of the Warren Court. Now conservatives are back at it. Judge Hand, by the way, did not believe in “substantive 14th amendment rights” — he would have rejected both liberal and conservative intrusions into the power of state and local legislators.

    The fact that DC voters don’t vote the way Damon thinks they ought to doesn’t mean the DC gun ban was unconstitutional. Whenever the topic of congressional representation for DC comes up, Hit & Run is filled with suggestions that DC residents who want to vote should move to Virginia. You get the picture. (Lower taxes too!)

  3. What about all of those cases of “fugitvie” slaves who were apprehended in the north? Usually there was some kind of hearing to determine (1) the identity of the “fugitive” and (2) whether the claimants had rightful “title” to the “fugitive”.

    Invariably, the judges refused to “legislate from the bench” and refused to employ the the ninth amd. or the declaration of independence or natural rights philosophy and instead, sided with the slaveholders on the basis that the act of Congress in question controlled(this stuff just didn’t happen after the 1850 Fugitive slave act-it happened from the beginning-1787). They judges would invariably declare that they had no authoirty to set aside an act of Congress.

    Many of the opponents of “judicial activism” really look so silly in their pronouncements about “the will of the people” and “who are these judges to disregard what a democratically elected legislature has ordained?” What a load of intellectual and historical rubbish. Yeah,like the framers were real fond of democracy.

    Tom Delay is an unprincipled, philosophically hypocritical, two bit punk thief.

  4. The Supeme Court did not uphold our rights. Justice Anthony Kennedy did. He was the only justice to vote for freedom in both the Second Amendment case and the habeas corpus case–and he was the swing vote in a 5 to 4 ruling both times. He also wrote the elegant opinion in Lawarence v. Texas, striking down sodomy laws on straightforward grounds of individual liberty. He is building a legacy that may make him the best friend of freedom ever to sit on the Court.

  5. A majority of the laws that SCOTUS declares unconstitutional should, by definition, be supported by a majority of the population, because (theoretically) for the law to get passed in the first place a majority had to approve it. In other words, an unconstitutional law (or bill really) that nobody likes would never ‘get the chance’ to be struck down.

    jbd – I agree, the other 8 justices have repeatedly voted along partisan lines, and then they just point the finger at each other for something their all doing.

  6. jbd,

    Explain Kelo and Raich then.

  7. When the reasoning that supports a declaration of unconstitutionality is sound, striking down unconstitutional law is not judicial activism. It is judicial competence.

  8. Judicial activism beats judicial pacifism any day.


  9. Recall the famous sterilization case when Justice Holmes ruled in favor of the law sterilizing this young woman. Holmes was an oustpoken advocate of “judicial restraint.”

    I’m not sure what part of the actual text of the Constitution could be seen as barring such a law when I think of it. I’m not sure what to think of a judiciary that cannot strike such a horrible law down.

  10. MNG,

    I’m not sure what part of the actual text of the Constitution could be seen as barring such a law when I think of it.

    Seems like a clear cut 9th amendment case to me.

  11. Robc, how do I excuse Kennedy’s votes on Kelo and Raich? I don’t. They’re horrible.

    But I stand by my statement. Name me a justice, living or dead, who’s been better than Kennedy across the board on liberty issues.

    Disappointment with rulings like Kelo should not distract from the fact that Justice Kennedy has helped secure the right to keep and bear arms, the right to keep the government out of your bedroom, and the right not to be disappeared into a secret prison system without due process. And his votes on economic liberty have been uneven but better than any of the famous civil libertarians I can think of.

  12. jbd
    Clarence Thomas.
    To do that I go back to Bajakajian (Kennedy dissented along with Rehnquist, O’connor and Scalia) and Jacobson (ditto, that was in the first year Thomas was on SCOTUS).
    But, lately I have wondered if it is the same Clarence Thomas on the Court.

  13. “Stevens found deeply troubling. “No one has suggested that the political process is not working exactly as it should,”

    Wrong. He’s just not listening, and I mean in the sense of sticking his fingers in his ears and shouting LA-LA-LA-LA-LA.

    The political process is not meant to legitimately generate legislation that outright contradicts the constitution. If they decide that something they want to get done would require change the constitution in order to be implemented, then article V is right there for them to use. Barring such use, any law generated in outright contradiction (such as any keep and carry arms law) is complete and utter garbage and deserves a quick trip to the dung heap.

    It’s just unfortunate that the USSC decision was based upon an invalid premise. There’s no “right to defend” in the constitution; there is a simple and very clear prohibition against the government – federal, and state via the 14th – from making ANY law that infringes with the right to keep and carry arms. Not pistols, not rifles – arms.

    The court often completely misses the boat, as is the case with FISA, which dumps the 4th amendment in the trash for convenience, nothing more. Again, if they need an exception to the 4th, article V awaits them, as it always has. I think they’d probably *get* such an exception in today’s fear-addled environment, too.

    The inversion of the commerce clause, the blatant creation and upholding of ex post facto laws… We are seeing what are very likely the last days of our constitutional republic.

    Remember, though the USSC went the right way for the residents of Washington, the reasoning was sophist, unconstitutional, and in no way bodes well for the actual intent of the constitution, which was that we *all* could keep and carry. This isn’t anything to get joyful over.

  14. robc
    I can’t believe you used “clear cut” and “9th Amendment” in the same sentence. That’s a pretty open ended amendment dontcha think?

  15. pgt, I’ll give you that Thomas looked promising early in his tenure on Commerce Clause issues. But he has never been good across-the-board on liberty.

    On most criminal procedure issues, he has been consistently terrible. And almost as soon as he got to Court, he was the lone dissenting justice to vote that prison guards did not inflict cruel and unusual punishment when they shackled a prisoner down and beat him enough to loosen several of his teeth. His reasoning was that the Eighth Amendment was not meant to regulate the disciplinary activities of prisons(??!) That was special.

    So while I appreciate your contrarian spirit in nominating Thomas, it’s a no-go. Kennedy is the best we’ve ever had.

  16. Only if it’s the “right” judicial activism.

    You can tell the system is working properly when lots of people in the mainstream are pissed off at the courts.

    The President’s at 30%, the Congress is at 10%, the SCOTUS is at… 50%.

    Apparently the majority want to be thwarted. Getting an S&M vibe from them there.

  17. Thwart us! Oh yes! Thwart us HARDER!

  18. The inversion of the commerce clause, the blatant creation and upholding of ex post facto laws… We are seeing what are very likely the last days of our constitutional republic.

    Because of the principle of stare decis, if the court previously approved these things, it must be upheld.

  19. Ginny:

    “Because of the principle of stare decis, if the court previously approved these things, it must be upheld.”

    No. Changes can be made:

    STARE DECISIS – Lat. “to stand by that which is decided.” The principal that the precedent decisions are to be followed by the courts.

    To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.

  20. Mister Nice Guy-

    The 9th is, in my opinion, the masterpiece of the bill of rights. Elemenope and others here do not agree; but, the 9th underscores the fact that the solid majority of the framers did not think that rights come from government. They were natural rights guys. They thought that rights are inherent. They did not think that rights come from gvt.

    Thus, let’s say the feds ban refer. IMHO, the proper question to ask is “what specific grant of power in the constitution enables the feds to ban MJ?” The wrong question to ask is “where in the constitution is there a right to smoke dope?”

    Don’t tell me the “police power”-that is a true example of horrible judicial activism. I find no such power in the constitution. Nor am I amenable to the plea of tyrants that it is implied.

  21. Joe, are you on vacation? See my post at 12:50 pm? Still think that I have a “confederacy fetish”?

  22. JBD-

    Agreed on Thomas. A decided mixed bag. On the positive side, he has openly stated that the court should reconsider the privileges and immunities clause. He has also said that the slaughter house cases were wrongly decided.

  23. libertymike
    The 9th is not much imo. It basically says “hey, we’ve put down some rights here, but the fact that we’ve put them down doesn’t mean they are exclusive.”

    So who decides then what are those “natural rights” that may be implied by this? Do you want the Taney court to decide it? The Four Horsemen Court? The Warren Court? The Rehnquist Court? Because if the 9th “means something” then in practice it will mean that SCOTUS will “decide” which rights are “natural” ones…The funny thing about “natural” or “self-evident” rights is that most people disagree on them…

  24. Well, maybe not “most” but “often many”

  25. mng sez I’m not sure what part of the actual text of the Constitution could be seen as barring such a law when I think of it.

    You have the concept inverted. The proper question is what part of the [Federal or State] Constitution authorizes such an action?

    Quaint notion, limited government.

  26. Mr. Root seems to have approached the issue of judicial activism without having established exactly what constitutes judicial activism (as opposed to appropriate interpretation of the Constitution by the Court).

    Obviously, the Court is supposed to strike down laws that are demonstrably unconstitutional, regardless of their popularity or unpopularity with the electorate or legislators. I don’t think that doing so constitutes “judicial activism” per se unless the Court either disregards or goes beyond the actual objective content of the Constitution –or, worse yet, distorts, fabricates or unilaterally amends that content–in order to issue a ruling that conforms to the Justice’s own personal political agenda, rather than one actually rooted in the Constitution itself.

    As for whether or not said rulings happen to serve libertarian goals–or liberal, or conservative, or moderate, or socialist goals, for that matter–well, that’s frankly irrelevant. Because it’s hardly democratic for unelected judges to dictate any narrow, biased ideological principles–even liberarian ones–into law, is it?

    I can think of no more specious philosophy of constitutional interpretation that the idea that judicial activism is hunky-dory just so long as it happens to serve our own political agenda. Because, after all, what’s to stop liberals, conservatives and socialists from doing the same thing whenever they have a chance to get one of their own seated on the Supreme Court? Something tells me we’d be singing a rather different tune about judicial activism then.

  27. A nicely pointless article, considering that “judicial activism” was not originally coined to mean any time the Court strikes down a law, nor is it defined that way in Black’s Law Dictionary. (The latter defines it as “a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent.”) It is to my mind equally “activist” when a judge substitutes his own public policy views e.g., that guns should be banned, for the Constitution and refuses to strike down a law.

    Of course, I grant that since the phrase sounds open-ended enough that it could embody several different meanings, people have used it in different ways; among others, the people whose judicial philosophy was attacked by the original coiners of the phrase found ways to use “judicial activism” in new ways. I think that such opponents have mostly succeeded in eliminating the value of the phrase. (Similarly, I’ve seen people invoke “smart growth” to oppose high density development, undoubtedly infuriating the ones who originally started pushing the phrase.)

    That’s what happens when you try to attach a phrase with nice connotations to a theory or body of thought, if the phrase is not precise enough to prevent people from using it to mean exactly the opposite of what you meant.

  28. I think — overall — the two mentioned cases were good decisions. As was an earlier case –not mentioned — titled Lawrence v. Texas.

    The H.C. case just sends them to the Federal courts, and the gun case still leaves plently of wiggle room, debates and lawsuits.

    The one — nearlly universal — blind spot for justices is ballot access. They all seem to have greatly devalued the 1st/14th Amendment interests involved in order to insulate two particular parties from competition.

  29. (1) The power of the Federal government to do most “modern” things (many of which I tend to favor) (i.e. regulating the economy, health and safety laws, labor and civil rights laws) stems largely from the power to tax and the power to regulate trade that crosses State lines.

    (2) The power of a particular State government to do something would probably come from their State constitution (I found a good database of State, Federal, Foreign constitutions and put it on my webpage). States do generally have implied “police powers”, but the Federal government generally does not — unless it says so in the constitution.

    (3) Natural rights? Who gets to define that? The 9th Amendment and the P & I clauses are both interesting parts to debate, but I think that they are not terribly too pratical for most Supreme Court judges.

    (4) Again, I think that one of the biggest mistakes of the Supreme Court has been in the field of ballot access, protecting two particular parties from intra and external competitiors.

  30. One of the biggest mistakes of Congress was the 15th Amendment.

    Not, because they were trying (largely unsuccessfully) to protect the sufferage rights of black men, but because they cowardly backed off from earlier drafts that talked more broadly about the right of citizens to vote and to be a candidate.

  31. People are still taking DeLay seriously enough to write articles and argue about things he has today? /sigh

    Don’t they teach about separation of powers, the role of the judiciary in enforcing constitutional rights, and the means of overruling the constitution in school? Oh right, as I remember it they’re too busy teaching us how to properly hero-worship and idolize popular historical figures to teach us what they did and why they did it.

    If people like DeLay don’t like Habeas Corpus, they’re welcome to attempt to pass an amendment that reads “Habeas Corpus don’t apply to no gol’ darn towel heads nor anyone else who the president and friends claims to have done somethin’ we here Americans think is real bad”. Until then it’s going to have to apply to alleged terrorists just like alleged serial rapists and every other individual alleged to have committed some outrageously detestable act.

    No amount of rhetoric about how super-duper-sure they are that these people are really big meanies and definitely should be in jail, like, forever, should defeat the necessity that they both charge them with a crime and successfully prove the crime in a court of law before they get to keep them there.

  32. What nonsense in the article and the comments about habeas corpus.

    The law that was struck down clearly stated that the right of habeas corpus was not being and could not be taken away from American citizens. The Supreme Court essentially declared that the Constitution applies to non-citizens and specifically to war criminals. It was a horrible decision.

  33. chaos — why, do you think, does the constitution use “citizen” in some places, and “person” / “persons” in others?

    Do you think this was an accident?

    Just wondering. Normally, especially here, I expect people to presume that the authors of that august document weren’t as stupid, as, say, George Bush or the 9 constitutionally ignorant people in the SCOTUS.

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