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Term review: A more activist Court


“Judicial activism” is a phrase, often used in criticism of court rulings one simply does not like, that has come to have so many meanings that it may now mean little if anything objectively.  Activism, it seems, is always — and perhaps only — in the eye of the beholder.  However, if one is careful to define the kind of judicial exertion that might be called “activist,” to any reasonable, unbiased observer, there may yet be some utility in it.  By such a measure, the Roberts Court in the Term just ended was remarkably activist.

Just how activist, in that specific sense, will be explored here.  First, though, it should be made clear what kind of judicial approaches to the law are not under review, even if they might be perceived as activist to some observers.

The Court’s bold or innovative or surprising use of prior precedent — as in two of the most controversial decisions of the past Term — should not be classified as activist.  The decisions to give juveniles a constitutional right of access to violent video games and to allow anti-gay groups to protest near a military funeral involved applications of existing precedent, though one might say in quite remarkable ways.  But that was, more or less, conventional judicial work: new facts are weighed against precedent, and a decision emerges.   It may be hard for many Americans to accept those two rulings, but they were not activist in any persuasive sense.

When a Court issues a decision, or accepts a case for review, because it appears to be pursuing an agenda, that, too, ought not to be considered activist.  The present Court majority’s fascination with campaign spending as a form of “free speech,” which certainly seems like an agenda-driven part of its regular work, might not seem virtuous to everyone, but the Court is very much in charge of its own decision docket, and judges will have prior perceptions of the way they think judicial resources should be used.   No one suggests that the Court is activist because it takes a lot of cases on arbitration, but that, too, is agenda-driven, something the Court wants to keep examining.

And it is not activist — at least not in a useful sense — for a Court to reach results that look like favoritism of this sector, or that, of society.  This behavior, of course, is the kind that most often arouses complaints of “judicial activism.” Progressive groups these days are apoplectic about how the Roberts Court is supposedly the captive of Big Business and wealthy people, but that is not much different from the days when the Court regularly ruled for criminal suspects, or for minorities.  Judges, too, come to the bench with a sense that some things in society need remedying, and that some of those are entirely fit for judicial resolution.

Some of these patterns of judicial behavior can be intermixed, but that, too, does not go further to make them activist.  The  two decisions this Term that most aroused complaints of business favoritism — shutting down the Wal-Mart sex discrimination case brought on behalf of perhaps a million women, and cutting off group arbitration by consumers who fell victim to the fine print in consumer goods contracts — were both the product of a majority’s agenda-shaped  belief that collective legal mechanisms are suspect, that they actually are not about righting economic wrongs but are about forcing big companies to give up and settle for big money, whatever the merits of the complaints against them.

Even, however, if one concedes that each of those approaches to the Court’s docket might qualify as activist, they are not what was most conspicuously activist about the Roberts Court this Term.   So, at last, that brand of activism is revealed, and examined.

It is activist, of the purest form, for a Court to decide a case on a broader legal basis than is necessary — no matter what its reason for doing so.   And the Roberts Court is, one might say, perfecting the practice.   The two most activist decisions that this Court has reached did not, in fact, come down this Term.   The first was the ruling in 2007 in the Louisville and Seattle school cases, where the Court reached out to nullify voluntary public school desegregation efforts, when there was really no pressing legal issue to decide.  The second was the ruling last year in the Citizens United case, with the Court proclaiming a sweeping new doctrine of corporate free speech when, in reality, the case could easily have been decided on far narrower statutory grounds — as the then U.S. Solicitor General Elena Kagan had suggested be done.

Both were classic demonstrations of what the “Ashwander rules” were meant to discourage.   In 1936, when a Court majority stretched its judicial muscles in Ashwander v. Tennessee Valley Authority to decide unnecessariliy a constitutional issue, Justice Louis Brandeis protested, and laid down a set of guidelines — quoted endlessly after that by cautious jurists — against deciding a constitutional issue when not necessary to resolve a case.   A whole theory of “constitutional avoidance” has built up around the “Ashwander rules.”

It is apparent, at the close of this past Term, that the Roberts Court has not given up the temptation to which it yielded in in the school cases and the corporate campaign spending case.    The examples are quite vivid.

Among the better illustrations of that were a few expansive uses of judicial power by the Justice who, because of the frequently decisive vote he holds, is the virtual embodiment of the tendencies of the Roberts Court — Anthony M. Kennedy.   Sometimes his lengthy grasp was for the Court, sometimes for himself.   But even when a Justice waxes at large for only himself (or herself), it lays down a marker for some future ambitious majority to follow.  

In writing for the Court in a chemical poisoning prosecution case, Kennedy chose not to confine the ruling to a simple declaration that a person facing a criminal trial may sue to challenge the constitutionality of the law he allegedly violated, but chose instead to decide a quite abstract question of whether the Constitution’s protection of “federalism” is not only a shield for the powers of the states, but is a guarantor of the civil rights of citizens of the states.

Kennedy used a decision for the Court  shielding from legal challenge a program of tax credits for parochial school tuition grants to approach the near-destruction of the concept that taxpayers sometimes have a right to sue to enforce the church-state separation clauses of the First Amendment.

When the Court gave legal immunity to former Attorney General John Ashcroft to a lawsuit claiming he had abused a “material witness” law in order to inaugurate a regime of detention of terrorism suspects, Kennedy wrote separately to suggest a constitutional theory that Cabinet officers should have a special kind of immunity that would insulate them from lawsuits, even if the constitutionality of their conduct had come into serious question in federal court rulings.

And, when the Court decided a rather mundane patent case, over rights to make a deep-fryer kitchen implement, Kennedy put forth on his own a notion entirely beyond the furthest limits of the case, that any federal criminal law that required proof that the violation was “knowing” should be satisfied by proof of “willful blindness.”  Its sweep was, in a word, breathtaking.

Kennedy, of course, was the author of the Citizens United case last year, with its equally stunning reach.

The temptation has even spread to the newest Justices.   In a decision on the right to confront witnesses against a defendant, Justice Sonia Sotomayor ranged far afield to create a virtually open-ended “public emergency” exception to the Sixth Amendment’s Confrontation Clause.  And in a case about police authority to interview a child about a sex abuse case, without a warrant and without parental consent, Justice Kagan ultimately ruled that the Court could not decide the case because it had become moot, but that did not keep her from creating — in what for all the world seemed like an advisory opinion – a completely unprecedented right of public officials to appeal lower court rulings on their legal immunity, even though they had won such a case below.

Justice Samuel A. Alito, Jr., part of a solid (and apparently growing) majority that is working case by case to assure that more criminal evidence gets put before juries, despite the decades-old limitations of the “exclusionary rule,” pressed close to the point of ruling that the rule could only be enforced in the most outrageous cases of stubbornly deviant police misconduct.

Chief Justice John G. Roberts, Jr., who had come to the Court with a seeming agenda to push for more “minimalist” decisions, reached eagerly for a broad constitutional ruling in the course of deciding what had seemed like a minimalist dispute over the bankruptcy law rights of the estate of the former topless performer Anna Nicole Smith.

Roberts, one may recall, was the author of the Louisville and Seattle school decision four years ago.

Justice Clarence Thomas, although deciding for the Court a significant case barring lawsuits against generic drug makers for failing to put side-effects warnings on their labels, lost his majority for the part of the opinion in which he borrowed the rather odd musings of a law review article to broaden the scope of the Constitution’s Supremacy Clause. 

At times, members of the Roberts Court would add material to their opinions that, while totally unnecessary to support the result, was offered gratuitously in order to answer criticism they got from dissenting Justices.  Both Justice Sotomayor and Justice Ruth Bader Ginsburg did that in a decision further restricting the use of crime lab reports in criminal trials when the lab technician does not appear.   (And, soon after that ruling emerged, the Court granted review to test one of the exceptions Sotomayor had outlined.)

As one would expect, though, the Roberts Court did, sometimes, decline to rule more broadly than it had to do to get a result   Maybe the best example was Justice Antonin Scalia’s opinion for the majority in the Wal-Mart case.  Although Scalia harbors very strong feelings that class-action lawsuits are, maybe always, violations of the Due Process Clause, he declined to do more than hint at that in resolving that job discrimination case on statutory grounds.   Perhaps he could not hold five votes for such an unnecessary constitutional essay.

Recommended Citation: Lyle Denniston, Term review: A more activist Court, SCOTUSblog (Jun. 30, 2011, 5:08 PM),