Judicial Activism

I found, via RealClear Politics an article penned by Damon Root and published by Reason Online that attempts to make the what its author calls "the libertarian case for judicial activism." Although the article provides some interesting historical background about several prominent Supreme Court justices, it also errs on some important points, starting with its advocacy of "judicial activism."

According to Wikipedia, judicial activism occurs when:

A judge ... uses the power of judicial review to overturn laws or articulate new legal principles without sufficient precedent, especially for purposes of shaping government policy.

The Root article frequently contrasts this judicial activism with "judicial restraint," which at first appears to be the opposite policy. Judicial restraint is:

A judicial philosophy whereby judges adhere closely to statutes and procedures in reaching their decision. Supporters of judicial restraint point to the Supreme Court case, Roe v. Wade (1973), as an example of judicial activism gone awry. Advocates for this philosophy argue that the courts should allow decisions of other branches to stand, even if they offend the judge's sense of principles.

But before we jump headlong into a discussion of the relative merits of judicial activism and judicial restraint, let's recall what is meant by judicial review.

Judicial review is the power of a court to review a law or an official act of a government employee or agent; for example, although the basis is different in different countries, as unconstitutional or violating of basic principles of justice. In many jurisdictions, the court has the power to strike down that law, to overturn the executive act, or order a public official to act in a certain manner if it believes the law or act to be unconstitutional or to be contrary to law in a free and democratic society.

On discussing the concept of judicial review in the United States, the Wikipedia article goes on to say:

The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, where it says that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Judicial review was legally established in the Supreme Court decision in Marbury v. Madison, though some legal scholars argue that the concept predates this case and "all those who discussed judicial review during ratification [of the U.S. Constitution] (there were dozens) agreed that the Constitution authorized judicial review." Some historians trace the origin of Judicial Review to The Federalist, No. 78 [link added] written by Alexander Hamilton. Writing as Publius, he justifies the need for the judiciary to have an absolute void on the legislature.

So why does Root advocate "judicial activism" if he really means principled "judicial review?" Good question. Perhaps we should take a look at what he regards as "judicial activism" and "judicial restraint."

Consider his first example of "judicial activism," that of "Lincoln's property-rights activist," Stephen J. Field, who wrote a dissenting opinion in a case of state regulation of industry that invoked the then-new 14th Amendment.

Attorney John A. Campbell, representing the Butchers' Benevolent Association, argued that the amendment's Privileges or Immunities Clause secured the right of butchers to pursue their calling without unreasonable interference from the state. Writing for the 7-2 majority, Justice Samuel F. Miller disagreed, holding that "the one pervading purpose" of the clause was to protect the rights of former slaves, not to expand the rights of white butchers [emphasis added].

...

In dissent, Justice Field took a far wider view. The phrase "privileges or immunities," he argued, describes those "natural and inalienable rights" that "belong to the citizens of all free governments." Furthermore, "Clearly among these must be placed the right to pursue lawful employment in a lawful manner, without other restraints than such as equally affects all persons."

First off, it is no feat of wild interpretation to apply the Privileges or Immunities Clause to "white butchers." Said clause, after all, appears to apply to everyone:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Granted, the dissenting opinion does seem to be at odds with earlier jurisprudence, and Root remarks glowingly on the fact that "Field's opinions resound with such extra-constitutional sources as Adam Smith's Wealth of Nations and the precepts of natural law -- the doctrine that man's rights derive from nature, not from human institutions." But if the 14th Amendment affects the constitutionality of earlier laws and precedents, isn't it his job, within the bounds of judicial review, to express his opinion that this is so? And what is a judge supposed to do when formulating his opinions? Check his education and ideas at the door? Isn't this why we ask about such things before planting him on the bench?

At this point, it might be useful to mention what Alexander Hamilton said about judicial review in the above-cited Federalist No. 78.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. [bold added]

So Fields could read both the law under question and 14th Amendment, and sense a conflict. His desire to serve as a check on the Louisiana legislature is perfectly consistent with the role for a jurist as envisioned by the Founding Fathers. If Fields was a judicial activist, this was not an example of judicial activism.

Root does better in attacking judicial restraint, noting Oliver Wendell Holmes's own formulation of this philosophy, which amounts to an abdication of his duty.

"I always say, as you know," Holmes once remarked, "that if my fellow citizens want to go to Hell I will help them. It's my job." That statement, perhaps more than Holmes or his supporters realize, perfectly captures the significant dangers inherent in judicial restraint. Consider, for instance, Holmes' dissent in Meyer v. Nebraska (1923), where the majority held that a state law banning foreign language instruction for young children, passed in the heat of the anti-German hysteria stirred up by World War I, violated the 14th Amendment's substantive guarantee of liberty. "I think I appreciate the objection to the law," Holmes explained, but "I am unable to say the Constitution of the U.S. prevents the experiment being tried."

Nevertheless, it is not, as Root might put it, "principled judicial activism" (What kind of judicial activism is not based in principles?), but judicial review, that is the proper alternative to judicial restraint. Indeed, judicial review is also the proper alternative to judicial activism of the sort decried mostly on the right these days, whereby certain judges do legislate from the bench. (I agree with Ashcroft only about the first two of his examples.)

But even so, let's cut Root some slack and pretend for a moment that his advocacy of judicial activism is bad semantics. Why does this Libertarian make the following appeal to conservative and liberal voters on behalf of what he calls "judicial activism?"

Conservative critics of judicial activism ought to celebrate this decision [which limited working hours for employees] and the countless economic "reforms" that followed. Instead, many such critics, including Justice Scalia, still favor an active judicial role in defending property rights. Similarly, modern-day liberals remain firmly committed to the demise of liberty of contract while at the same time championing Lochnerian substantive due process for privacy and abortion rights.

So he's calling both conservatives and liberals "half-right," after having stated earlier that, "The common denominator [in the kinds of 'judicial restraint' championed] is that both liberals and conservatives will gladly sacrifice individual liberty to further their particular notions of 'good government'."

Root is correct in condemning the selective application of judicial restraint on the part of both liberals and conservatives. But -- even if we ignore the obvious confusions brought about by his misuse of the term "judicial activism" -- he is flatly wrong in his inisistence that "principled judicial activism" is the solution.

Why? As I pointed out before, judicial activists and even those intent on practicing legitimate judicial review must unavoidably adhere to their own principles when acting as judges. So this leaves the question open: What principles? What, indeed, does Root mean when he says, "A principled form of libertarian judicial activism, therefore, is clearly consistent with the basic requirement of a free society: the protection of individual rights against the tyranny of the majority"?

Considering the following quote by Murray Rothbard, your guess is as good as mine.

... Libertarianism is a coalition of adherents from all manner of philosophic (or nonphilosophic) positions, including emotivism, hedonism, Kantian a priorism, and many others. My own position grounds Libertarianism on a natural rights theory embedded in a wider system of Aristotelian-Lockean natural law and a realist ontology and metaphysics. But although those of us taking that position believe that only it provides a satisfactory groundwork as a basis for individual liberty, this is an argument within the libertarian camp about the proper basis and grounding of Libertarianism rather than about the doctrine itself. [emphasis added by Peter Schwartz]

So in the end, what could have been a great article is damaged by the Libertarian practice of pitching a big tent to include those who are afraid to stand up for their principles, those who lack principles, and those who actively oppose the principles upon which freedom depends.

The solution to our judicial crisis, to him, is "a principled form of libertarian judicial activism" -- meaning naked judicial activism based on whatever the hell principles a jurist happens to hold. In the end, this could even include judicial restraint on the grounds that "helping people go to Hell" was one's "job" as a judge. After all, is not the idea that "courts should allow decisions of other branches to stand, even if they offend the judge's sense of principles" a principle of jurisprudence that fits the description of judicial activism but, sadly, for its own ample precedent?

In the end, Damon Root correctly decries judicial restraint, but not judicial activism, which he further implies is the same as legitimate judicial review. He furthermore fails to see, in his attempts to appease fans of judicial activism on the left and the right, that judicial activism and judicial restraint are two sides of the same coin: abdication of the responsibility of judicial review. Worse, his failure to acknowledge or recognize what principles are required for freedom cause him to advocate "more of the same" at a time when our freedom is under attack by both judges who tyrannize from the bench and those who would fail to protect us from the tyranny of the majority.

Root's advocacy of "judicial activism" consists in a vague advocacy of judicial review buttressed by pro-freedom "principles" which he dares not name for offending any liberal or conservative champions of judicial activism out there who might be listening. What he should be advocating instead is proper judicial review informed by a solid understanding of the philosophical basis for individual rights. His failure to do this is a direct result of the Libertarian premise that fundamental principles do not matter. This results in his advocacy of exactly the wrong type of judge and does nothing to dispel the myth that we have to choose between the false "alternatives" of judicial restraint and judicial activism.

-- CAV

Updates

7-6-05: Fixed two typos. Edited a paragraph and moved it to the end.