It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.President Obama correctly states that judicial activism is typically associated with liberal judges. Many liberal constitutional law scholars, however, have accused conservative judges of being too invasive. Indeed, both liberal and conservative judges have ignored public opinion and the desires of the political branches – starting with the anti-regulatory rulings of the Lochner and New Deal era, the criminal procedure rulings of the Warren Court, and the assault on civil rights during the Rehnquist Court. Commentators across the political spectrum, however, most often use the term “judicial activism” simply to condemn opinions that they find disagreeable.
What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.
And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.
Obama’s analysis raises two interesting issues. First, it is unclear what rulings he believes were excessive or “activist” during the “’60s and ‘70s.” Conservatives have tossed the activism charge around loosely in order to disparage the Warren Court’s protection of individual liberty and equality. Many of these arguments, however, are inaccurate because from the perspective of national public opinion, the Court’s civil rights rulings enjoyed majoritarian support. Also, the Court did not act vigorously on matters like school desegregation or voting rights until Congress passed comprehensive legislation addressing these concerns.
On other issues, like criminal procedure, that lacked public support, one could make a sound argument that the political process should not enjoy deferential judicial review. Although conservatives and liberals may debate the meaning of the procedural rights protected by the Bill of Rights and the Due Process Clause, these are certainly “core constitutional values.”
Obama’s comments also raise the issue of how the Court should interpret the Constitution. He argues that the Court should extend deference to the political branches so long as they respect constitutional limits. But reasonable jurists can (and often) disagree on the meaning of the Constitution. In fact, the judicial activism rhetoric often masks underlying disagreement over judicial elaboration of constitutional values.
I suspect that Obama offered these comments in order to shape the terms of the debate of his next Supreme Court nomination. If so, the confirmation hearings could cover far more interesting terrain than the last round.
Note: This essay originally appeared on Concurring Opinions, where I am guest-blogging for May 2010.