Do We Need More Judicial Activism?

The Supreme Court is at its worst when upholding invasive government actions.

The latest issue of the wonderful legal journal The Green Bag features a micro-symposium centered on Vanderbilt law professor Suzanna Sherry's provocative essay, "Why We Need More Judicial Activism." In short, her argument is that the power of judicial review requires judges to either strike down or uphold democratically-enacted laws, and since judges are "bound to err" one way or the other at various points, "It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few."

Pointing to a number of "universally condemned cases," such as Plessy v. Ferguson, where the Court upheld a racially discriminatory state law, and Korematsu v. U.S., where the Court upheld President Roosevelt's wartime internment of Japanese-Americans, Sherry points out that almost all of the worst cases in U.S. history feature "an overly deferential Court [that] failed to invalidate a governmental action." More judicial activism would fix that problem, she argues.

One of the most interesting things about her case is the fact that it's not rooted in any particular theory of the Constitution. There's no appeal here to the original meaning of the text, nor is there any claim that the Constitution is a living document that must change with the times. Her argument is based on history and practice and is openly results-oriented. That's a rare combination in legal discourse, or at least it's rare for the writer to be open about seeking a certain result. And she does make a very significant point: The Supreme Court has indeed been at its historic best when nullifying invasive laws and at its worst when allowing them to stand.

Do we need more judicial activism? Read the micro-symposium and decide for yourself.

Related: "Conservatives v. Libertarians: The debate over judicial activism divides former allies."

Comments

[Fist of Etiquette]

"It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few."

Justices are picked by presidents and "vetted" by Congress. They're going to be statists to some degree. They show undue deference to police and to the legislative, as though Congress is "the people." And none of them restrict their judicial thinking to their one guide: the United States Constitution.

[Tonio]

I think it's more accurate to say that they have exhibited statist behavior up to the time they are confirmed. Some retain this behavior throughout their tenures, others grow and change when freed from the constraints of having to worry about future appointments, promotions, etc.

Justice Powell was a good example of a Justice who grew in office - appointed by Nixon as a safely conservative justice he became the swing vote and a voice of moderation and reason.

[Doctor Whom]

"It is much better for the health of our constitutional democracy if they err on the side of activism, striking down too many laws rather than too few."

I made the same point a while back.

[KPres]

Activism could be anything, like reinterpreting the constitution to allow whatever the statists want.

[Gilbert Martin]

Here we go again with an invalide defintion of judicial activism.

It has nothing to do with whether a court invalidates a government action or not.

It has to do with ruling based on what the actual text of the Constititon says according to what those who drafted and ratified the document understood those words to mean.

The Roosevelt ear court that rubber stamped the "New Deal" as well as the Japanese internment referred to in the article WAS engaging in juducial activism by allowing the federal government to exercise powers nowhere delegated to in the text of the Constitution.

[Tonio]

No, Gil, "judicial activism" is any decision made by a judge with which the speaker disagrees. When you approve of what the judge did, then the judge is merely doing his job.

See, also, "common sense."

[The Late P Brooks]

Sherry points out that almost all of the worst cases in U.S. history feature "an overly deferential Court [that] failed to invalidate a governmental action." More judicial activism would fix that problem, she argues.

At this point, the courts could strike down out of hand eight out of every ten laws passed as being by definition unconstitutional infringements of liberty, and be safe.

[Eduard van Haalen]

A bridge too far. Of course the Court should seek to block unconstitutional laws, but it shouldn't stretch the constitution to make laws unconstitutional when they are perfectly valid.

Let's see what history shows us about the libertarian effects of judicial activism -

Dred Scott v. Sanford, striking down the Missouri Compromise, allowing slavery in federal territories.

Shapiro v. Thompson, striking down residency requirements for welfare, so you can start collecting checks as soon as you move to a new state.

[] v. [] [too lazy to look up the title], striking down law that if your eligibility for welfare is in doubt, your welfare is cut off until there's a final determination. Court said the welfare must continue until you're found ineligible. In other words, shift the burden of proof from the welfare recipient to the taxpayers.

Plyler v. Doe - Struck down Texas law that the parents of illegal immigrant children had to pay for their kid's public-school education. Now the states must educate illegal immigrant children for free, because God forbid we blame the *parents* for illegally moving to a jurisdiction where they have to pay their kids' tuition.

Don't even get me started on outlawing a huge section of the human race, making them vulnerable to being murdered by their mothers.

[alan_s]

If the courts were doing there job in the first place, then welfare and public schools would have been ruled unconstitutional to begin with.

[Eduard van Haalen]

If the courts did their job, we wouldn't be debating Shapiro v. Thompson, would we?

[ChrisO]

The power of judicial review is always going to be an uncomfortable one, and there's no available theory that can change that.

This is probably stating the obvious, but the Court has almost always been results-oriented, with the stated analytic method merely being a fig leaf.

Wow, am I a cynic or what?

[Eduard van Haalen]

"Cynic, n: a blackguard whose faulty vision sees things as they are, not as they ought to be." - Ambrose Bierce

http://www.brainyquote.com/quo.....36467.html

[plumbertom]

Is it inherent that those that wish for unconstitutional power to be used by branches of the government that they wetenever meant to have always refer to our country as a "constitutional democracy" when it is in fact a constitutional republic.
Any supposedly educated person thar does this cannot have any valid opinion simply because they do not understand the nature of what they speak/write about.

[Goldwin Smith]

I doubt too many people will be happy if the court rules that there is a right to healthcare, union pensions, etc. Then there is the fact that the court declaring a right to privacy hasn't stopped the IRS or the NSA.