Judicial Activism

As a follow up to my last piece and the blog entry by James Fallows, I’d like to address the balance between ideology and deference in the Supreme Court. Fallows is upset that justices who claimed a fealty to precedent are now going “out of their way … to decree new law contrary to what Congress had ordered and other courts had long approved.” I can appreciate his frustration. And it certainly seems reasonable to criticize these particular justices for apparent hypocrisy. But the opposite approach — a Court that upheld every law and always followed existing precedent — would be equally disastrous.

In the normal course of events, the justices should do their best in following the basic judicial principles identified by Chief Justice Roberts in his confirmation hearings. These include a respect for precedent, the powers of the other branches, and the text of the Constitution itself. Even if a justice believes that an ambiguous passage of the Constitution should be read one way in a particular instance, if the weight of precedent and legislative history favors the other approach, that should be enough to sway the justice’s vote. The Court should be conservative in the sense of deferring to the wisdom of the past and upholding the status quo.


Except, of course, when precedent and legislation are wrong. Because sometimes they are and the Court becomes truly the last resort for correcting past wrongs and bring the government in line with the principles of the Constitution. Sometimes the Court has to dramatically depart from the past. For example:

  • In 1896, the Supreme Court found in Plessy v. Ferguson that racial segregation was constructional. In 1954 the Supreme Court overturned this precedent in Brown v. Board of Education. I hope we can agree that they were absolutely right to do so. I think this is the clearest example of the need to overturn existing precedent (more than half a century of it) to bring the nation in line with the best ideals of the Constitution. In doing so the Court put its legitimacy on the line and sparked more than half a century of conservative attacks on the Court.* But by making this move unanimously it helped deflect accusations that this was a partisan maneuver, reaffirming the integrity of the institution.
  • In 1905, the Supreme Court overturned a New York state law limiting “liberty of contract” by setting working hours. The case, Lochner v. New York, became a the starting point for the “Lochner Era” in which the court prioritized “liberty of contract” over government regulation of the economy. That era came to a close with the 1937 decision in West Coast Hotel Co. v. Parrish, which opened the way for minimum wage laws and ultimately for the Second New Deal. Again, I think this was a necessary switch for a new economic reality, though there are plenty of conservatives who would prefer a return to the Lochner Era. Unlike the Brown decision, West Coast was not unanimous and was generally seen at the time as a retreat in the face of pressure from FDR rather than as a principled shift by the majority.

In each of these latter cases, the Court was being “activist” in the clearest sense of the term. The justices took existing law, precedent, and constitutional interpretation and turned them on their head. They stood up for a new way of reading the Constitution and made that the law of the land. And we’re a better nation for it. Ultimately, as the court of last resort and a coequal branch, this is what the Supreme Court needs to do in some circumstances. This is why I don’t like the term “judicial activism.” Sometimes, in ways large and small, we need a Supreme Court that takes action.


Personally, I don’t think Obamacare rises to this level of seriousness. Though controversial, it does not mark a pivotal departure from earlier interpretations of the legislative powers of Congress. If, as expected, the conservative majority chooses to overturn the law, the question will be whether they do so on narrow or broad grounds. Narrow grounds could require a re-framing of the “mandate” provision without negating Congress’ ultimate power to legislate such requirements. That would simply fine-tune the existing precedent regarding the Commerce Clause. Broader grounds could mark a return to the Lochner Era, in which the Supreme Court drastically (re)limited the other branches’ power to regulate the economy. If they go broad, watch to see whether the finding is written to apply only to the federal government or whether the scope is such to invalidate Romneycare as well.

Whatever the Court’s decision on Obamacare, it should be cognizant of its institutional legitimacy. Even the unanimous Brown decision severely strained support for the Court among conservatives. Recent decisions, from Bush v Gore through Citizens United, have had a similar effect among liberals. Close decisions are natural, but too many big ones start to strain the necessary support for the unelected branch. An overly-partisan, precedent-destroying decision on Obamacare would do a lot to undermine the Court’s long-term standing. We’ll know in the coming days whether the conservative justices are willing to pay that price to deliver on ideological goals. But I hope they’ll put the maintenance of the institution first. We need a strong, respected Supreme Court. I hope Roberts finds a way to deliver that.

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