“Judicial activism” is not the problem

Mark Levin’s Men in Black: How the Supreme Court Is Destroying America is a best seller among conservatives. Unfortunately, the book sounds as though it is sloppily argued. Levin indicts the Court for “judicial activism,” meaning that the Court, instead of reading the Constitution as written and intended, treats it as a “living” document and thus turns itself into an unelected and unaccountable legislature. Yet according to John S. Ryan in a lengthy reader’s review at Amazon.com, among Levin’s examples of “judicial activism” is Plessy v. Ferguson. Plessy is of course the opposite of judicial activism, since the Supreme Court in that decision refused to expand the Fourteenth Amendment’s meaning into new areas not intended by its framers. If Levin indeed condemns Plessy as an instance of “judicial activism”, then it would be hard to disagree with Ryan’s conclusion that Levin is using “judicial activism” as a catch-all term for any result he doesn’t like. Such intellectual carelessness does not bode well for the vitally important cause of returning the federal courts to their proper sphere. Here is an excerpt from Ryan’s review, followed by a further comment by me:

One of the cases is Plessy v. Ferguson, in which the Supreme Court refrained from striking down (under the Fourteenth Amendment’s Equal Protection Clause) a state-level racial-segregation law. Okay, it was a bad decision—but it amounts to ‘judicial activism’ the way sitting really still amounts to vigorous exercise. (Indeed, it was overturned by Brown v. Board of Education, which I’d regard as a pretty ‘activist’ decision—and so would Levin, if it had involved a state law he liked.)

Another of his selections is Korematsu v. U.S., the 1944 case in which the SCOTUS upheld the constitutionality of an executive order (issued by FDR) to relocate and intern people of Japanese descent. Whatever you think of the result, surely the problem Levin has with it is that is shows undue deference to the executive. Calling this ‘judicial activism’ sheds no real light and even obscures the fact that the order in question came not from the judiciary but from the executive branch.

In this respect the example is typical of much of his argument. Given his focus, you’d expect his targets to be strictly judicial matters. Yet he devotes entire chapters to problems that touch only tangentially on the judiciary—and therefore are far from showing ‘How the Supreme Court [as opposed to, say, Congress] Is Destroying America’.

For example, we get a full chapter on the McCain-Feingold Act, a campaign-contributions law that, on Levin’s view, violates the First Amendment. Okay, I agree. But Congress passed it and President Bush signed it; all the SCOTUS did was refrain from striking it down out of (over-) deference to the other branches of the government. How is this an example of a judiciary run unconstitutionally amok?

I question Ryan’s reasoning in the last quoted paragraph. If the Congress passes, and the president signs, a blatantly unconstitutional bill expanding Congress’ powers into areas never remotely envisioned by the Constitution, and, in fact, explicitly prohibited by it, and if the Supreme Court then approves that legislation on the basis of its own policy preferences (which in the case of McCain Feingold happen to be the same as those of the Congress and the president) rather than on the basis of what is in the Constitution, then the Court is certainly guilty of running unconstitutionally amok, even if it is not guilty of “judicial activism.” The problem is in the phrase “judicial activism.” As Justice Scalia argued in his recent speech, the issue is not whether the Court is “active” or not, since sometimes the Court needs to be active in defense of the Constitution; the issue is whether the Court is attempting to read the Constitution as written and intended, or whether it is injecting into the Constitution its own meaning, derived from “evolving social standards,” or “international consensus,” or the judges’ personal feelings and preferences, or emanations and exhalations from the moon, or whatever. Similarly, says Scalia, “strict constructionism” is a misleading term, since either a judge is attempting to read the Constitution as it was written and intended or he is not, whereas “strict construction” makes it sounds as though a judge is artificially forcing the Constitution into a cramped and narrow meaning. Therefore, Scalia continues, to avoid confusion in this debate, the issue should not be framed as “strict constructionism” versus “judicial activism,” but as the “originalist” view versus the “Living Constitution” view.

Posted by Lawrence Auster at March 21, 2005 10:29 AM | Send