In a recent piece here at The Mitrailleuse, Robert Mariani writes the following crucial sentences:
“Words are useful insofar as they have publicly agreed upon definitions. From definitions, we can have discourse that leads to some sort of useful truth.”
Amen to that.
At the Heritage Foundation’s recent Conservative Policy Summit Senator Rand Paul made the case that conservatives should abandon their preference for “judicial restraint” and embrace a more “activist” Supreme Court. George Washington University Law professor Orin Kerr helpfully attempted to delineate the different meanings people ascribe to the loaded term “judicial activism” a few years ago. He conjures up five distinct possibilities. So what, exactly, does Dr. Paul mean when he implores conservatives to think twice about restrained courts? What definition is he operating on?
First, let me humbly offer mine.
I propose that the charge of judicial activism can be levied wherever judges operate outside of their proper job description. If courts exist to know, interpret, and apply law, then any decision not resulting strictly from a process of interpretation involving general good will toward getting that interpretation correct is an “activist” decision. This does not mean any decision passed under the guise of subjective interpretation counts as whole and good, rather that interpretation had to be deliberated in good faith and free of inappropriate influences.
This may be labeled a procedural definition of activism as opposed to one that focuses on outcome. Professor Kerr offers that a decision itself (to strike down or leave intact a law), its implications for the scope of judicial power, its consistency with precedents, and its subjective accuracy (right/wrong) are all potential reasons people see a ruling as activist. These are outcome-based definitions as they focus on how the decision and its contingent effects help define restraint or activism, and I ultimately see Kerr’s lone remaining explanation (“the decision was motivated by the Justices’ personal policy preferences or was result-oriented.”) as the closest to a true procedural characteristic.
Outcome-based definitions are inadequate in my view because we require information on how that verdict was reached. Seeing if a decision passes some static test is not enough. Court deliberation is a process and it is here that dubious motivations enter, not after the fact. Noting that a court decision cut against precedent tells us nothing of why it did so and it does nothing to illuminate the purity of intent, or lack thereof, of those deciding. (Admittedly it is in this view of activism as ignoring precedent where my narrow focus on process is most likely to falter, as one may view the application of previous law, regardless of subjective opinion, as part of a court’s “job description” I invoke above.)
It is true that an outcome-oriented definition may simply function as a signaling device for the process itself. For example, if the decision expands judicial power we may condemn it because we infer perverse reasons for why it was reached. But this would only mean these activist definitions collapse into a proper procedural view, however helpful they may be on their own.
Back to Senator Paul then: After starting with Justice Roberts’ decision in upholding the Affordable Care Act’s individual mandate, he goes on to claim this result was the fault of judicial restraint:
“Does anybody know why Justice Roberts did not strike down Obamacare?” Judicial restraint. So I guess everybody here is for Obamacare … thinks that the court should stay out of Obamacare … because the majority wanted it. In fact, that’s what Justice Roberts said, he said that we should not get in the way of the majority.” (3:43 mark).
Paul’s original working definition in the speech is the majoritarian one then. A court decision, as far as I can tell, is activist precisely to the extent it is not restrained and vice versa. If support for the majority position is what constitutes restraint then taking unpopular stances on judicial questions determines activism. Through this lens, a restrained court is one that never strikes down popular laws.
But looking to popularity as a defining characteristic is confused. A court that refuses to go against popular opinion is no court at all. A judicial process that replaces itself with a populist litmus test, a mere polling of the citizenry, is no process at all. Such a court would be reduced to a democratic redundancy rather than the independent spoke in the republican wheel it was intended to be. An institution that purposely abdicates its own role strikes me as, contrary to Paul, very activist indeed.
The senator then goes on to give chronological examples of “judicial activism” however, and it quickly becomes apparent that his definition does not, in fact, turn on the deference to the popularity of legislation, but to legislation in general:
“We go back and we start in 1905 with Lochner … and in the Lochner case state legislatures were becoming more progressive and they were restricting the right, or the liberty of contract. And so what happened is you had an activist court in the Lochner case that rules 5-4 and says states can’t interfere with the right to contract. So the question is are you for activism or restraint?” (5:37 mark)
Now it is judicial action on the whole that Paul equates to activism, as he makes no use of the popularity attribute here. His discussion of other cases (The New Deal, Brown v. Board, etc…) also supports this take. This is the fourth possible interpretation listed by Professor Kerr in his post, which I will call the literal definition of restraint, as a restrained court in this sense is one that doesn’t do anything when faced with substantive questions: its message to legislators is, “carry on.”
A literal view of judicial activism is fraught with the same problem that befell its majoritarian cousin, namely that it relinquishes its formal responsibility. As Kerr notes, “everyone agrees with the basic notion of judicial review” so why should doing one’s job be considered activist? Activism is not synonymous with activity. A Supreme Court that gives the nod to every piece of legislation it sees has no useful purpose for existing. It isn’t a check or a balance on anything, and, on the procedural definition, it too would be labeled activist.
Up to this point, from my perspective, Senator Paul comes off not as a radical judicial activist, but as a standard believer in courts as a legitimate institution. I suspect that at least a few conservatives in the audience, who unanimously pledged allegiance to judicial restraint when queried at the outset of the speech, would confess that they are operating on a different definition than Paul. This is that “talking past each other” dynamic prone to bog down discussions that fail to agree on definitions ex-ante, as Mariani reminded us.
Coming full circle, Dr. Paul reveals that, unsurprisingly, he is not only supportive of the notion of a judicial branch that actively checks legislation, but he prefers that it does so to preserve liberty. It is a small step from here to say that he supports activity only insofar as it preserves liberty.
“We say we don’t want judges to write laws, well I don’t want judges writing laws either but do I want judges to protect my freedom? Do I want judges to take an activist role in defense of liberty?” (10:43 mark)
It is this preference that judges take an activist role in promoting liberty that outs Paul as a true judicial activist and also aligns his ultimate definition of activism as an accurate procedural type. Encouraging judges to defend liberty fits snugly into Kerr’s first interpretation whereby the charge of activism is propelled at decisions that stem from “personal policy preferences” or were “results-oriented” rather than an unbiased interpretation.
Now this final climax might seem pretty boring, even obvious; Rand Paul wants judges to promote his values, so what? Nevertheless, talk of judges taking an “activist role” in defending any value whatsoever does indeed cut against a large swathe of conservative legal thought. As Thomas Sowell explains in his superb book on the ideological roots of political views, where the “unconstrained” and “constrained” visions can loosely be equated to liberalism and conservatism respectively:
“The unconstrained vision has continued to emphasize the deliberate creation of law, by both legislators and judges, in order to produce desired social results. It rejects the emphasis of the constrained vision on the characteristics desirable in the legal processes, as such, and especially the attempt to make the judge’s role essentially that of a neutral transmitter of process principles created by constitutional or legislative enactments.” (P. 204 – latter emphasis mine).
An inclination towards results and away from value-free “process principles” in matters of Supreme Court deliberation is yet one more issue that genuinely separates Senator Paul from a large portion of the Republican base. While the message to Justices from many conservatives is “do your job” Paul’s mandate is closer to “help me do my job.” Yet he should heed his own warning that he offered to conservatives who support a judicial deference to the majority:
“Now some of you might say ‘well I’m still for judicial restraint, I don’t care about any of those cases, we just need a better majority.’ Now that is an argument. But the question has to come also if you don’t have a better majority.”(11:22 mark)
Fair enough for those laboring under the majoritarian burden, but the same question also has to come, for Paul, if you don’t have judges who prize the same values as you do. For once you open up the judicial process to results-oriented ambition, your ideological opponents can rightly claim that their activism plays by the same rules yours does, and that is a dangerous path to embark on. Such a path arguably reduces the judicial branch to nothing more than a battleground for ideological debates (note that the cynical will insist this is what it already is!) Is that really a desirable outcome? It is not about whether conservatives “care about any of those cases” (they most certainly do), it is about choosing the best judicial process-rule for society in general. As tempting as it is capitulate when your team is in the driver’s seat, the future is anything but assured.
Instead, conservatives (and perhaps libertarians) may be better served by more strictly adhering to Sowell’s articulation of the constrained vision. If law in general exhibits “an evolved systemic rationality” made possible only by focusing on neutral procedural rules, and if this form is “superior to explicitly excogitated individual rationality” of the type inevitably required of activist judges, then Paul’s plea for judicial activism is off the mark. I, for one, (in typical libertarian fashion?) don’t feel quite at ease succumbing to either option. But at least we’ve determined that it is a plea for judicial activism proper. That has to count for something, right?
Jordan Zino works in investment research in Boston. His undergraduate studies were in finance and economics. He is a believer in the power of markets, ideas, and coffee.