Clark Neily of the Institute for Justice believes that the courts are systematically failing to enforce constitutional limits on government power—though not necessarily in the way that conservatives think it happens:
Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.
Those who favor restraint often accuse the courts of “judicial activism,” a nebulous epithet that packs a powerful rhetorical punch with very little content. . . .
. . . the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.
[ . . . ]
Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of “judicial activism” to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of “judicial activism” to specific cases, which very few of them do.
Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.
Although I mostly agree with Neily’s conclusion, the methodology his organization uses (the sections I elided over) sets up a false dilemma. The problem of judicial activism (contra Arlen Specter) is not so much quantitative as it is qualitative. The reason that judicial activism catches the attention of those of us outside the legal profession is that it tends to have an inordinately large impact on society. The judiciary could refrain from engaging in activism on 10,000 cases and yet still be overbearingly activist if the 10,001st is a Roe v. Wade.
Also, judicial abdication can itself be a form of activism. For example, a judge may refuse to overturn legislation because it aligns with her political views and advances a “socially correct” (though legally dubious) outcome. How often this occurs—or whether it happens at all—is impossible to know. But it seems plausible that judges who are willing to engage in blatant advocacy wouldn’t be opposed to using more subtle means.
Whether the two types of errors are related or completely separate is of minor concern. Both failings are problematic and worthy of our scrutiny.
Neily deserves credit for helping us to focus on this problem. I especially agree with his point that, statistically speaking, we should see more laws overturned that we do. Whether a law is made by the legislature or a regulatory agency, the courts should not be hesitant to toss it in the trash if it is doesn’t pass constitutional muster. Even established precedent should not be off-limits. As my favorite “Neuhausian conservative” state court justice says, “Stare Decisis is fo’ Suckas.”
October 14th, 2011 | 10:11 am
The math is very misleading. Joe points out Roe v. Wade, and that is true. Consider also that a single decision strikes down not only the law at issue in the case, but (effectively) all similar laws. Roe struck down a single Texas law, but it invalidated the laws of all 50 other states which limited abortion. Under Neily’s math that would be one law overturned when the true tally should be over 50.
Judicial activism also has a “chilling” effect that goes far beyond any particular case. Consider the Supreme Court’s decision to apply the Establishment Clause to the states for the first time in 1948. Not only has that decision spawned literally thousands of cases, but also it has resulted in a sort of legislative paralysis in which governments (especially local governments) self-censor and refrain from activities that would probably be upheld (e.g., a properly constituted Christmas display) for fear of having to spend $100,000 in court defending it. Government action that does not occur because of this chilling effect is just as much an effect of judicial activism as laws/actions that are struck down, but they figure nowhere in Neily’s facile math.
October 14th, 2011 | 10:26 am
“a judge may refuse to overturn legislation because it aligns with her political views and advances a “socially correct” (though legally dubious) outcome.”
Buck v. Bell comes to mind (“three generations of imbeciles are enough”).
October 14th, 2011 | 7:38 pm
Mr. Carter:
One of your major unstated assumptions is that there is some free-floating constitutional standard by which we can measure or evaluate what does and does not pass constitutional muster. That’s just not the way it works, and it’s wholly unrealistic to see constitutional law that way. Setting aside the tangled mass of issues involved when we include stare decisis, which only makes the analysis that much more complicated and opaque, in the first instance “it is emphatically the province and duty of the judicial department to say what the law is.” (Marbury v. Madison, 5 U.S. 137, 177). The courts themselves are the ones who decide what the Constitution means. The Supreme Court, of course, has the final say, if they so choose. But the point is just that there isn’t some extra-judicial Meaning of the Constitution floating around waiting to be used to strike down or uphold laws and regulations.
October 15th, 2011 | 12:12 pm
Anonsters writes: “One of [Carter's] major unstated assumptions is that there is some free-floating constitutional standard by which we can measure or evaluate what does and does not pass constitutional muster.”
Anonsters, I am not sure what you mean by this, but there most certainly is (or at least should be) a standard for deciding what does and does not pass constitutional muster. It is called “the Constitution.” Yes, in Marbury justice Marshall wrote that it is the province of the judiciary to say what the law is. I would, however, urge you to take another look at the case, and you will see that the fundamental bedrock of the opinion is Marshall’s opinion is his observation that the U.S. has adopted a “written constitution.” Surely Marshall’s observation would be meaningless and the program of judicial review he envisioned set adrift if the judiciary were not strictly bound by the text of the written document to which Marshall referred.
And I do not take Mr. Carter to be relying on an “extra-judicial” meaning of the Constitution. We can all agree that the Constitution’s text has meaning and Supreme Court decisions can (and often are) unfaithful to that meaning. That is what I understand Mr. Carter to be referring to by “judicial activism.” So he is not appealing to an “extra-judicial” meaning of the text by which to discern whether a court has engaged in activism. He is appealing to the plain old everyday ordinary meaning of the text.
Here’s an example. The court says that the due process clause of the 14th Amendment “incorporates” some (but not all) of the Bill of Rights and makes the favored provisions applicable to the states. Balderdash. It does no such thing. The decision is utterly unsupportable by text, history and structure of the Constitution. It is a judicial power grab plain and simple. I don’t need an “extra-judicial” standard to judge it so. All I have to do is look at the text of the Constitution to condemn the power grab.
October 15th, 2011 | 12:17 pm
Another factor missed here is that courts do not review all laws passed. They only review laws if it results in an actual dispute before them which means that someone has to file a suit and that someone has to have standing to sue (meaning the unconstitutional law has to directly impact them in some negative way, they can’t just be do-gooders seeking to improve laws). Absent an actual case, US courts do not rule on laws or issues opinions advising legislatures on proposed laws.
The relevant metric then should be how many laws are stuck down after their Constitutionality is actually challenged in a court case.
October 15th, 2011 | 11:07 pm
Or another way of looking at it:
I’ve been driving maybe 20 years maybe at least two times a day. That’s 14,600 drives I’ve taken and I’ve had I think two accidents. that’s just about in line with “about three out of every 5,000 laws passed by Congress and state legislatures every year”
So maybe we should consider just exactly what we mean by courts strking down laws. The impression above is that its an error checking process, like your spell check on your email program. You’re happy it catches more errors! But maybe its not so happy. Maybe its more like a car accident. The fewer you have the better. And the courts aren’t so fun. To challenge a law you have to have standing so it means you had to have been harmed in some way by the law. That means a very time consuming and stressful process of filing, pleading, appealing and so on. If this unconstitutional law has put you in jail, taken your house or money away, or put you on death row then its not so harmless as, say, spell check. Even if you win at the end, well wouldn’t you have rather not played?
So maybe the founders set the system up not wanting to see many unconstitutional laws passed….so they generally made it hard to pass an unconstitutional law. Sort of like highways are genreally ‘idiot proof’ to min. the chance of accidents, even though lots of really stupid people will drive down them. Of course that doesn’t mean it isn’t hard to pass a stupid law, a poorly thought out one, or one with really crappy consequences. It does mean that the system channels most of the competiting political pressures in such a way to ensure that most laws that end up making it are within Constitutional bounds.
October 16th, 2011 | 1:08 am
Barry Arrington:
You’re make the same assumption, while claiming that you’re making no such assumption. You think the text has determinate meaning. And then you invoke an example and cite “text, history, and structure.”
To quote the very next sentence in Marbury, after the one I quoted: “Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.” (Marbury, 5 U.S. 137, 177). Yes, we have a written constitution. It has to be interpreted and applied. Much in the same way that we have written scriptures, which have to be interpreted and applied. For me, as a Catholic, it’s pretty obvious that every answer to every question I may have about faith and morals will not be found explicitly spelled out in the Bible. Thank God for the Church and her Tradition.
Once again, you say: We can all agree that the Constitution’s text has meaning and Supreme Court decisions can (and often are) unfaithful to that meaning.
Yes, we can argue that way. And arguing that way, we’re being dishonest, either with each other or with ourselves (or both). I interpret the Constitution to say X. The Court says the Constitution means not X. The Court is being unfaithful to the meaning of the Constitution! No, the Court is being unfaithful to my interpretation of the Constitution.
That is not to deny that there may be more strongly supported interpretations, depending on our chosen criteria (text, history, structure, evolving standards, a decent respect to the opinions of mankind, what Big Bird thinks, whatever). But notice the Constitution itself doesn’t prescribe any particular methods or criteria for interpreting it.
And for what it’s worth, I absolutely agree that the notion that certain rights are incorporated against the states through the due process clause of the 14th Amendment is balderdash. I’m with Hugo Black on this one: the entire Bill of Rights (well, except for the 9th and 10th Amendments, of course) is incorporated by the 14th Amendment.
October 17th, 2011 | 9:48 am
Anonsters,
Thank you for your excellent elucidation of constitutional nihilism. We will have to disagree.
October 17th, 2011 | 10:28 am
I disagree Anonsters is expousing nihilism. Look the Constitution itself created an SC with *multiple judges* whose decisions carry by majority vote. In other words the Founders themselves did not feel the Constitution’s meaning was ‘obvious’ and deducing it nothing more than a simple application of logic to premises as if it was alegebra or arithmatic. The very inclusion of multiple judges and voting implies different but legitimate points of view. After all you don’t have or need a committee to decide what the square root of 100 is.
October 17th, 2011 | 4:28 pm
Anonster espouses nihilism and Boonton supports him with an all too familiar liberal trope, the old chestnut that goes something like this: “The line is sometimes blurry; that must mean there is no line at all.”
October 18th, 2011 | 3:33 am
One could apply to the Constitution what Portalis said of the Code of 1804: “A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.”
October 18th, 2011 | 10:10 am
And Barry Arrington, rather than responding substantively to either my or Boonton’s comments, decides to label us with what is apparently supposed to be a derogatory label. I’m certainly convinced. Or, you know, not.
October 18th, 2011 | 1:19 pm
Don’t be surprised Anonsters, Barry is the relativist in this argument.
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