One of the “Most Activist Judges We Have Right Now”

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

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Is the Roberts Court the Least Activist Court in History?

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.

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Originalism and Judicial Review – Part II: The Textual Arguments

For the first post in this series, see here.

This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution.

It appears that virtually everyone agrees on the first issue that the Constitution takes priority over ordinary legislation. This appears to follow from the meaning of the Constitution (and perhaps as well from other provisions in the Supremacy Clause). It is the second issue where there is dispute: whether the courts get to determine whether legislation violated the Constitution or whether the courts should defer to the legislature’s determination that the legislation conformed to the Constitution. Put differently, where in the Constitution does it say the Courts get to say what the Constitution meant rather than the legislature?

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Originalism and Judicial Review – Part I: The Mistaken Opinion of the Previous Generation

One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is an issue where for a couple of generations people regularly asserted that the original meaning was the opposite of what it actually was: judicial review.

For a couple of generations before the last 10-15 years, people regularly claimed that the Constitution did not provide for judicial review and that Chief Justice John Marshall invented it in Marbury v. Madison. Yet, nothing could be further from the truth – judicial review is clearly established in the text and history of the Constitution.

This is an important issue. After all, if judicial review was made up by the Court, then this makes it more difficult to argue that the Court should follow the original meaning of the Constitution when conducting it.

The claim about the original meaning fit with the prejudices of the dominant view during this period. In addition to its implicit endorsement of nonoriginalist adjudication, this view about judicial review often drew a distinction between judicial review of federal laws and judicial review of state laws. This view sometimes acknowledged that judicial review of state laws was contemplated by the original meaning, but it still insisted that judicial review of federal laws was not. Thus, this claim fit with the New Deal view that judicial review of the federal government should be lax at best.

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The Zeitgeist and the Judiciary: a 100th Anniversary Reflection

A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review.  His speech was entitled “The Zeitgeist and the Judiciary.”

At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century.  During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt.  In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.

“The Zeitgeist and the Judiciary” is a remarkable exemplar of  early progressive jurisprudence.  His brief, candid remarks display the main aspects of the progressive political and constitutional project. 

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The Constitutional Basis for Judicial Review

Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution.  Lino wrote:

Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution.  Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably  provided for in the Constitution.  [MR note: does Graglia mean explicitly or explicably?]  It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution.  This was not correct in that other nations had and have written constitutions without judicial review.  Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.

Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution.  While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common.  It obviously supports nonoriginalism.  If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.

But judicial review is not just made up.  In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution.  But, even more importantly, judicial review has a strong basis in the constitutional text.  While I cannot go review all of the arguments, I will try to hit the high points.

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The Nine Unwritten Constitutional Lives of Akhil Reed Amar

The central question of constitutional law is the role of the Supreme Court in our system of government. Yale law professor Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By argues for a role even more expansive, if possible, than at present.

Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution.  Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution.  It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution.  This was not correct in that other nations had and have written constitutions without judicial review.  Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.  America’s Unwritten Constitution rejects that limitation. 

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James Madison’s Constitutionalism

JamesMadison1In this next edition of Liberty Law Talk, I discuss with Gregory Weiner, author of Madison's Metronome: The Constitution, Majority Rule, and the Tempo of American Politics, James Madison's understanding of how popular sovereignty, federalism, and separation of powers provide the bulwark of protection for a free and vibrant political and social order. Madison, Weiner observes, considered the constitutional architecture provided by these concepts facilitated the necessity of majority rule, and unlike modern theorists of judicial review, also served as the best guardian of minority rights.

Judicial Deference, Self-government, and Judicial Rule, or Have a Coke and a Smile

In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.

Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.

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