Activist Judiciary in America?

In My Humble Opinion
1

I heard a recent conservative complaint about judicial activism, and I decided to do some research into the makeup of the Federal Courts.

My primary source is Wiki. I summed of the total judicial appointments of every president back to Nixon – since only one of his appointments is still on the bench it didn’t seem worthwhile to go back further.

Anyway, here what I found:

Total Appointments	Still sitting

Nixon made 237 appointments, 1 are still on the bench
Ford made 61 appointments, 2 are still on the bench
Carter made 262 appointments, 13 are still on the bench
Reagan made 384 appointments, 69 are still on the bench
Bush 1 made 200 appointments, 84 are still on the bench
Clinton made 379 appointments, 286 are still on the bench
Bush 2 made 331 appointments, 314 are still on the bench
Obama made 43 appointments, 43 are still on the bench
Totals 1897 appointments, 812 are still on the bench
To put this into Democratic and Republican terms

Democratic presidents made 684 appointments, 342 still sitting on the bench
Republican presidents made 1213 appointments, 470 still sitting sitting on the bench.

I always figured “judicial activism” was code, coined by conservatives, for liberal judges. And I know there’s not a one to one correlation between Democratic appointments and liberal judges, or Republican presidents to conservative ones for that matter. But I can’t see there’s any case at all to be made that liberal judges have swamped the Federal court system.

Am I misapprehending what judicial activism means? What is the evidence for it in the current times? Please, let’s not go back to Brown v Board of Education – though if there’s someone who still wants to attack that decision, I would kinda like to hear it.

2

No, you’re correct. It started when conservatives started disliking some of the decisions of the Supreme Court in the 60s. The claim was that they were creating law, and since then conservatives have used the term as a rallying point against any judicial ruling they don’t like.

If it had any real meaning, it was that courts were interpreting the Constitution too widely and were making decisions that should have been left up to the other branches. But it quickly devolved into “the courts are making decisions I don’t like.”

At the point, the Supreme Court is activist on the right (e.g., Citizen’s United). But the people who rail against activist judges never made a peep when that happened.

3

That’s pretty interesting. I guess “judicial activism” works both ways. stare decisis, whether liberal or conservative, is going to bounce back and forth depending on which way the political pendulum swings. Kind of a negative feedback, loop if you will…

4

I used to be all in favor of judicial activism when they were making decisions like Brown and Roe, but now I am totally against it.

But my views of the world haven’t changed.

5

I think many conservatives were upset when the court refused to strike down legislation in Kelo v. City of New London. Also, I think they liked some of the gun laws being struck down by an activist court.

6

I’ve always maintained that judicial activism is ideologically meaningless. It just means somebody disagree with the decision a judge made. No judge ever states they are making their decision up; they always produce a list of precedents to demonstrate that the opinion they issued is in accordance with existing laws. If you don’t like the interpretations they made of those existing laws, you accuse them of being an activist.

7

Don’t forget the country’s recent huge lurch to the right due to the “Information Age” and deregulations of media ownership and campaign contributions.

Some of Reagan’s and Bush 1’s appointees are leftist by today’s “standards.” (David Souter was appointed by Bush 1.)

8

Also don’t forget that judges may take senior status and continue to hear cases. For example, Sandra Day O’Connor has heard appellate cases at the federal circuit level since her retirement from the Supreme Court.

Now to the main point: does judicial activism exist?

Yes.

Unfortunately, it is often clouded by what you correctly discern: any case in which someone disagrees with the outcome is called judicial activism. This is unfortunate, because it obscures the fact that there is such a thing as judicial activism, and it can be used to favor both the right and the left.

We’ve talked many times on this board about Lochner v. New York, the early twentieth century opinion that found a “right to contract” in the Constitution. This allowed the Court to strike down a progressive law from New York that limited the number of hours a baker could be forced to work. By finding a right to contract in the Constitution, the Court overturned New York’s attempt to limit the exploitation of bakers, saying that employees and employers had a constitutional right to agree to terms of work unfettered by the government.

An even earlier example was Church of the Holy Trinity v. United States. In 1885, Congress – as they had every power to do under the Constitution – passed a law: “It shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia under contract or agreement…to perform labor or service of any kind in the United States, its territories, and the District of Columbia…”

Basically: you can’t bring in foreigners to do jobs here.

The Church of the Holy Trinity, an Episcopal church in New York, nonetheless hired E. Walpole Warren, of London, England, and paid his way to New York where they gave him a contract to serve as rector and pastor of their church.

They were subsequently accused of violating the law. This accusation reached the Supreme Court, which incredibly found that that the Church of the Holy Trinity was blameless. This is “…a Christian nation,” said the justices, and “shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?”

This was activism of the purest sort. Note well that both these cases reach results which might be favored by conservatives. But it’s not the results that make a decision activist: it’s the grounding, or lack of it, in the text of the relevant law or constitutional provision. When the court, in other words, decides the case on its view of what is RIGHT, even though there is scant support in the written text for its decision, it is being activist.

In Church of the Holy Trinity, the law could not have been more clear. But " It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers," said the court.

When a court can disregard the plain language of the law and substitute its own ideas about the intention of the makers, the court has graduated from its proper role to a kind of uber-legislature, an unelected, lifetime appointed maker of laws. This is what is meant by “activism.”

9

I think a big issue with accusations of judicial activism is the Ninth Amendment. It says that they are constitutional rights that are not specifically named in the constitution. So Justice Peckham might have been right - maybe there is an unenumerated constitutional right to contract. (Although Peckham, like most judges, avoided citing the Ninth Amendment and used the Fourteenth Amendment as his authority.)

10

If that’s the case, then why ground rights in the Fourteenth at all? If the theory is that the Ninth is a source of unenumerated but substantive rights, where are the opinions that say so?

11

Because let’s face facts, anytime a justice cites the Ninth Amendment people are going to accuse him of making things up. And it’s a fair complaint.

If you and I were both Supreme Court Justices and I said that the Ninth Amendment gives people an unemunerated right to sing the blues and you said that the Ninth Amendment doesn’t give people an unemunerated right to sing the blues, we’d both have equally valid claims to being right.