The Legacy of Judicial Activism

By Stephen Pomper, Washington Monthly. Posted December 16, 2004.

Now, with the ailing William Rehnquist entering his 18th year as chief justice of the U.S. Supreme Court, liberals find themselves facing an unexpected truth about his legacy: It hasn't been that bad.

To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.

So how did the Court arrive at such a sane and centrist position? In The Most Activist Supreme Court in History (University of Chicago Press, 2004), political scientist Thomas Keck gives credit to a practice that has long been the rhetorical whipping boy of the legal right: judicial activism. And, in particular, he credits the bipartisan activism practiced by the Court's powerful swing justice, Sandra Day O'Connor. To find Keck's analysis useful, you don't have to accept his conclusion that the Rehnquist Court is in fact the most activist Court in history. You do, however, have to accept some of his premises about what makes for an “activist” Court. Keck sees Supreme Court activism as having three separate prongs, linked by a fundamental disdain for Congress. The first is a tendency to invalidate statutes in impressive numbers, disregarding Justice Oliver Wendell Holmes's admonition that nonelected judges should give great deference to democratically elected legislatures. The second is the extent to which the Court asserts its supremacy by declaring that it alone may interpret the Constitution — even where the Constitution appears to give other branches of government the right to share this authority. And the third indicator, argues Keck, is the willingness to wander into so-called “political thickets” — messy cases with no clear right answer and big-time political implications.


Does Keck fully make the case that the Rehnquist Court (which invalidated a record 33 federal statutes on constitutional grounds in eight years, made soaring pronouncements about the supremacy of its constitutional views over Congress,' and wandered into the mother of all political thickets in Bush v. Gore) is more activist than the Warren Court (which invalidated far more state and local laws, handed down the catalytic Brown v. Board of Education decision, and steered somewhat irresponsibly toward a constitutional guarantee of economic equality)? Not really, but it doesn't matter. Even if you think the Warren Court should win top activist billing for the breadth and impact of its decisions, the Rehnquist Court's voluminous, if tempered, record gives Keck more than enough material to chew on.

It also raises the question: How can conservatives possibly square the Rehnquist Court's activist legacy with their own anti-activist rhetoric? Well, it turns out there's a trick: There are actually two different kinds of activism — conservative and liberal — and conservatives don't count decisions within their own tradition as, well, activism. In teasing this out, Keck explains that the two activist traditions have very different objectives. Conservative activists want to achieve limited government — particularly at the federal level — and tend to get there by arguing that Congress is interfering with economic or states' rights. By contrast, liberal activists want to protect the core freedoms that allow vulnerable minorities to participate in the political process. They give extra scrutiny to laws that affect those minorities, and invalidate those that they judge to put politically tinged freedoms at risk. The heyday of conservative activism was the early New Deal era, when the Court struck down one after another of FDR's legislative initiatives; Roosevelt put an end to that by threatening to pack the Court. The heyday of liberal activism was the Warren Court era of the '50s and '60s and the early Burger Court period of the '70s, which has left a legacy (including Roe v. Wade) that rankles conservatives to this day.

As to how conservatives have developed a guilt-free approach to their own brand of activism, the key to understanding this is the doctrine of originalism. The idea behind originalism is that the Court can tear a mighty swathe through acts of Congress without really engaging in activism if it is channeling the original intent of the Framers. This sounds like a wonderfully hoary and straight-shooting concept but Keck shows that it's something short of that. In fact, the seeds of modern orginalism were planted by Justice Black in the 1940s for liberal activist purposes; he was trying to develop a basis for expanding the Court's enforcement of the Bill of Rights against state governments. Black sparred with Felix Frankfurter (a champion of judicial restraint) in an effort to make originalism respectable, but this goal was not fully achieved — at least during Black's tenure. It did not help Black's case that his historical work concerning the incorporation of the Bill of Rights against the states was shot full of holes in the academic press. This helped support the critical impression that originalism is a highly corruptible doctrine prone to what constitutional scholar Alfred H. Kelly has referred to as “law office history” — that is, reverse-engineered speculation about the past generated by bright young law clerks who know what their bosses want to hear. You can argue the merits and demerits of originalism until you are blue in the face, but on the question of whether originalism somehow transforms conservative activism into something else, Keck is very persuasive: The doctrine does not have a privileged claim on interpreting the Constitution, and when the Court invalidates a congressional statute it is in activist mode — even if the justices are certain that the Framers themselves (whether through the Federalist Papers or by means of Vulcan mindmeld) are commanding them to throw Congress' work on the compost pile.

So where do the two activist traditions leave us with respect to the Rehnquist Court? Not, it turns out, where the left-leaning bar once feared. Liberals feared that the hardcore conservative activists on the court (Scalia, Thomas, and Rehnquist) would lead the moderate center (O'Connor and Kennedy) into a furious bloodletting against the hallmark legislation of the New Deal and Civil Rights eras, as well as against seminal Warren Court and post-Warren Court decisions (like Roe v. Wade), all in the name of limited government and originalism. It hasn't happened. Instead, as Keck points out, the moderates, and particularly O'Connor, have set the tone by zigzagging between liberal activist decisions that prop up (and, in the case of gay rights, expand) the minority-oriented protections of the Warren Court and conservative activist decisions that trim back the authority of Congress over state governments in a hodgepodge of areas ranging from patent enforcement to age discrimination. In staking out this terrain, Justice O'Connor has frequently sought to limit the sweep of her opinions, preserving for the Court the option to rethink itself when faced with slightly different facts.

Keck's book is not an easy read — it could use a bit more narrative oomph to propel the reader through 300 pages of legal analysis — but it does an excellent job of giving Justice O'Connor her due. In particular, Keck convincingly defends O'Connor against the criticism (which has come from both the left and the right) that her bipartisan activism and her one-off opinions have created an ad hoc jurisprudence that gives too little guidance about where the law has crystallized, and too little direction about where it is headed. While Keck acknowledges that this approach has its imperfections, he also makes clear that these may be a small price to pay for what O'Connor has achieved. Although the Rehnquist Court may be among the most activist in history, its tendencies have been guided by O'Connor's fairly delicate and evenhanded scalpel. Given the powerful tradition of conservative activism that Keck describes, the alternative might well have been — and could well still be — something more like a chainsaw.

Stephen Pomper is a contributing editor of The Washington Monthly.

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