Judging the Judges

TO HEAR PRESIDENT George W. Bush tell it, American democracy faces an internal threat - from its own judiciary. "Activist judges," he said in his January State of the Union address, "have begun redefining marriage by court order, without regard for the will of the people and their elected representatives."

Bush's talk of judges "forcing their arbitrary will upon the people" has been resoundingly echoed on the political right in the months since the Massachusetts Supreme Judicial Court's decision allowing same-sex marriage. Governor Mitt Romney took to the pages of The Wall Street Journal last month to accuse the SJC of "judicial overreaching" in a decision he said was "wrongly decided and deeply mistaken." Patrick Buchanan went so far as to declare, "We Americans today live under a judicial dictatorship that our Founding Fathers never intended." Meanwhile, some on the left argue that most judicial activism these days is coming from conservatives on the US Supreme Court. Wasn't it a ruling by five activist judges in Bush v. Gore, partisans ask, that put Bush in the White House? Besides, liberal court-watchers note that Chief Justice William Rehnquist's court has struck down almost 30 acts of Congress in the last 10 years - "an astonishing display of judicial activism not seen since the 1930s," when the court consistently rejected New Deal legislation, wrote American University law professor Herman Schwartz in "The Rehnquist Court: Judicial Activism on the Right" (2002).

Indeed, the charge of judicial activism has become a "ubiquitous epithet" and unhelpful "scare phrase," Georgetown law professor Peter Edelman recently noted in The Washington Post. Constitutional law scholars across the political spectrum tend to cringe at the way the phrase is used in public debate.

"It's almost embarrassing for anyone who is a serious thinker about the Constitution to bandy it about," says Harvard University constitutional scholar Laurence Tribe, who has spoken out in defense of the SJC ruling.

"Most people who use the term don't provide a coherent definition of it. It typically means judicial opinions with which they disagree," says Randy E. Barnett, a law professor at Boston University who considers himself a libertarian and a defender of "original intent" in Constitutional matters.

Still, the charge isn't going away. Though it is misused by partisans, scholars have for generations held serious debates about judicial activism - and have sometimes even found ways to embrace it.

. . .

In the political fray, the charge of judicial activism is usually made when court decisions are seen to be interfering with the will of the majority as expressed through their elected representatives - when they are seen to be "making law" rather than interpreting it. But judicial activism, says Barnett, "can't just mean striking down decisions of the legislative branch." (The doctrine of "judicial review," enshrined in American jurisprudence by Justice John Marshall in the famous 1803 case of Marbury v. Madison, gives the judiciary the power to override actions of the other branches of government.) "What it ought to mean," says Barnett, "is judicial decisions that conflict with the Constitution, either because they're putting into the Constitution something that's not there, or because they're refusing to enforce what is there."

This, of course, is where things get tricky. Among legal theorists, the debate about judicial activism is really a debate about how to read and interpret a constitution (federal or state), and how to apply it to disputes the framers could never have imagined. It is sometimes a debate about when courts have unjustifiably one-upped the legislative branch, but it is more often an exercise in judging the work of judges. Have they made legitimate arguments that cite actual language in the Constitution? Have judges carefully followed the precedents set by earlier decisions? And when overturning precedent, have they steered toward a better interpretation of the Constitution - one they are prepared to uphold in future cases?

There is little consensus among legal thinkers on how to settle these questions. Some originalists, or "strict constructionists," such as Robert Bork and Barnett (who makes the case in his new book, "Restoring the Lost Constitution"), believe the courts must base decisions on specific language in the Constitution and interpret it purely as it was meant at the time it was written. Other scholars, however, say the search for original intent is chimerical. "It's like, you know, hunting for the Loch Ness monster," says Schwartz. "It just isn't there."

Some liberal theorists, including most prominently Ronald Dworkin, emphasize that the nature of the Constitution itself requires that we interpret it - and that the highest goal is to interpret it in ways that improve it. In his 1991 book "On Reading the Constitution" (coauthored with Michael C. Dorf), Harvard's Tribe found support for the idea of a "living Constitution" from none other than William Rehnquist, who wrote in 1976 as a new Supreme Court judge that "where the framers . . . used general language, they [gave] latitude to those who would later interpret the instrument to make that language applicable to cases that the framers might not have foreseen."

. . .

So there is little agreement among constitutional scholars about which principles of interpretation are best, or on which rulings show "activist" intent. But some have suggested ways of changing "judicial activism" from a term of partisan abuse to a helpful analytic tool.

In an article last spring in the magazine Legal Affairs, University of Chicago law professor Cass R. Sunstein offered a neutral definition of judicial activism. "A decision that is activist is not necessarily wrong," he wrote. "No one thinks that a court should uphold all actions of the other branches and so a court that is activist, in this sense, might be something to celebrate." By extension, a court that is "restrained" - one that seldom strikes down laws or reverses bad precedents - may be falling down on the job.

For terms like "judicial activism" and "judicial restraint" to have useful meaning, Sunstein argued, they must be modified. "A court that wrongly invalidates statutes might be said to show unjustified activism," he wrote, while one that frequently makes political decisions not remotely tethered to the Constitution might be held guilty of illegitimate activism. Furthermore, a court that wrongly upholds statutes might be said to show unjustified restraint, while a court that frequently fails to uphold clear Constitutional principles is guilty of illegitimate restraint. (The thrust of Sunstein's article was that the Rehnquist Court is acting with "illegitimate activism" - as did the Warren Court on some occasions.)

Of course, Sunstein concedes, such terms do not eliminate the hard work of evaluating the merits of court decisions. What about the SJC's recent decision in favor of same-sex marriage?

"It's clearly an exercise in judicial activism," Sunstein said in a recent interview. But the majority opinion was not, as the president put it, an "arbitrary" exercise in making a law. To buttress its case, Sunstein pointed out, the majority cited liberty and equality guarantees in the state constitution, its own precedents for protecting those guarantees (as well as relevant US Supreme Court precedents), and previous acts of the legislature, such as permitting same-sex couples to adopt children.

"I'm not sure if the decision was right, but it was well within the bounds of legitimate judicial activity," Sunstein says.

Others make the argument that SJC ruling could, in fact, fall into Sunstein's category of "unjustified activism" - that the court wrongly invalidated Massachusetts law restricting marriage to a man and a woman. In fact, such a viewpoint was taken by the dissenters on the SJC itself.

Justices Martha B. Sosman and Robert Cordy, in separate dissents, maintained that the case depended only on whether the legislature could be seen to have a "rational basis" for existing law. Cordy argued that since social science hasn't had enough time to study whether children are adversely affected by being raised by same-sex couples, the legislature was not being "irrational" in favoring traditional marriage. "The issue," Sosman wrote, "is not whether the Legislature's rationale . . . is persuasive to us, but only whether it satisfies a minimal threshold of rationality."

Furthermore, Cordy argued, the case was not about "government intrusions into matters of personal liberty" (and therefore the clear province of the court), but about whether the state was obligated to "endorse and support" the choices of gays and lesbians "by changing the institution of civil marriage to make its benefits, obligations, and responsibilities applicable to them."

Cordy continued, "While the courageous efforts of many have resulted in increased dignity, rights, and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action."

There are those who would take the argument further, by questioning the claim that the SJC decision has any legitimate basis at all. "There's nothing in the Massachusetts Constitution at all that even vaguely suggests that equality ought to be extended to those who want same-sex marriage," says Marquette University professor Christopher Wolfe, who has written books on "modern judicial review" and judicial activism (and has edited two books critical of homosexual rights). But Sunstein firmly rejects the charge of illegitimate activism, as does Laurence Tribe, who believes the SJC ruling is "strongly textually based."

One of the provisions cited by the SJC was Article 1 of the Massachusetts Constitution, as amended in 1976 by the state's equal rights amendment: "All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin."

Though sexual orientation is not mentioned here, the court saw bias against same-sex couples to be unacceptable. Justice John M. Greaney, in a concurring opinion, argued that telling two women they cannot marry each other amounts to illegal discrimination on the basis of gender. Tribe agrees: "It's sex discrimination, pure and simple."

There's little doubt that the SJC read new meaning into the language of Article 1, as courts have been doing, rightly and wrongly, throughout American history. Whether they have shown admirable activism or unjustified activism is hotly disputed now. But only history can hand down the definitive judgment.

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