How the right and the left learned to love judicial activism.

I.

Moments after Justice John Paul Stevens announced his intention to retire from the Supreme Court, Republican senators warned President Barack Obama not to appoint a judicial activist to replace him. Senator Orrin Hatch promised Obama “a whale of a fight if he appoints an activist to the court” and Senator Mitch McConnell warned that “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law."

But Hatch and McConnell’s definition of “judicial activism” is topsy-turvy. When most people talk about judicial activism, they mean judges reaching out to strike down laws. But according to Hatch and McConnell, judges are activist if they refuse to strike down federal laws that Republicans oppose. Hatch voted against the health care mandate and, after he lost that fight, supported a lawsuit filed by 13 state attorneys general that asks the courts to strike down the individual mandate as unconstitutional. When McConnell lost the fight against the McCain-Feingold campaign finance bill, he successfully crusaded for the Supreme Court to strike the law down. In other words, on the most pressing national disputes of our day—from campaign finance to health care reform and financial reform—conservatives are embracing the very definition of judicial activism they spent the past 40 years denouncing, asking unelected judges to reverse their defeats in the political arena and all the while redefining this strategy as judicial restraint.

The political opportunism of these conservative activists is not surprising: Liberals during the Warren Court era also relied on courts to hand them victories that eluded them in the political arena. Of course, during the Warren era, activism usually meant asking the Supreme Court to bring a few state outliers into line with a national consensus—on racial discrimination, for example. By contrast, Roberts Court-era conservatives are urging unelected judges to strike down landmark federal laws that passed over their objections, at least some of which command broad national support.

How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won't be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream--on issues like the death penalty or economic regulation--it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.


Despite the fact that this relationship between the Court and public opinion is now broadly accepted by people on both sides of the political spectrum, there are strident voices on the right and the left who are determined to deny this descriptive claim. Some of them have recently attacked us, and misconstrued our arguments about the way the Court behaves.

Additionally, they combine denial of how the Court does act with prescriptions for how it should. On the right, conservative defenders of judicial activism who view the courts as the last stand against perceived federal tyranny, such as National Review online contributor Matthew Franck, are attempting to rewrite history and claim that courts can and should resist the president and Congress. On the left, some liberals, such as New Republic contributor Justin Driver, nostalgic for the judicial heroics they imagined in the Warren era, are (surprisingly enough) encouraging the courts to do precisely what conservatives want: embrace activism in the interest of protecting minorities in the face of determined national majorities. 

We understand the impulse, on the left and the right alike, to resist the crude claim that justices do nothing more than follow the election returns. But while we are confident that public opinion constrains the justices somewhat, neither of us has ever argued that the justices should or do simply bow to the polls.

Our historical claim is more nuanced, and it is clearly borne out by the evidence. Don’t take our word for it alone. Chief Justice Roberts himself has acknowledged in interviews that the justices are concerned about the legitimacy of the Court and reluctant to decide cases in ways that will imperil that legitimacy. His predecessor, William Rehnquist, made a similar point, explaining that the justices live in the world and are influenced by the same forces that affect the rest of us.

All of the reported leading names on President Obama’s shortlist to replace Justice Stevens—Merrick Garland, Elena Kagan, and Diane Wood—are stellar candidates, with broad support among conservative and liberal academics, who would undoubtedly oppose conservative efforts to reverse their political defeats. But replacing Justice Stevens will not alter the present conservative composition of the Court.  So the question remains: Will we see a return to the constitutional conflicts of the 1930s, when the Supreme Court launched an assault on FDR’s New Deal, until he struck back by threatening to pack the Court. Anything is possible, but in the end, we are skeptical. A little realism about the Court suggests that Chief Justice Roberts is likely to balk at the siren calls of the conservative activists and decline to go very far down this fraught path.

II.

Hoping to bolster the conservative case for judicial activism, Matthew Franck has written a critique of Rosen that exhibits not only a misunderstanding of history but also unrealistic hopes about what the justices will be able to do for the conservative struggle against President Obama and the regulatory state.

Franck takes issue with Rosen’s claim that, in fights between the president and the Court, “it’s almost always the president who prevails.” To rebut the claim, Franck employs three historical gotchas. But each of Franck’s examples actually proves the opposite of what he suggests.

Take the historic face-off between Thomas Jefferson’s Republican Party and the Supreme Court led by the Federalist John Marshall. Franck claims that the legendary Chief Justice was not fazed by Jefferson’s attacks. “Was there ever any sign that Marshall’s judicial decision-making was the least bit affected by the expostulations of Thomas Jefferson?” Franck asks. The answer, as it happens, is yes.

Before Jefferson took office, the lame-duck Federalists packed the judiciary with their loyalists by creating a number of new federal circuit courts and District of Columbia justice of the peace positions. When Jefferson’s secretary of state, James Madison, failed to deliver the commission to one of the new justices of the peace, William Marbury, Marbury sued Madison. Justice Marshall then used the case to arrogate to the Supreme Court the power of judicial review. Sound familiar? No doubt, but this narrative leaves out the crucial backstory.

When the Supreme Court took Marbury’s case and ordered Madison to explain his action, Jefferson’s Republicans retaliated by abolishing all the new circuit-court judgeships. Everyone on both sides of the political divide knew this was a problem. The Constitution says that federal judges hold their office for life. But Republicans passed the legislation anyway, claiming a distinction between eliminating the office and firing the judge. The Republican move was quickly challenged, in a case called Stuart v. Laird. Knowing they were on thin constitutional ice, the Republicans then canceled the Supreme Court’s next sitting so the Court couldn’t rule on the constitutionality of the new law.

Then, when all this came before John Marshall’s Court—after another national election that displayed continuing strong support for the Jeffersonian Republicans—the justices rolled over. Marbury v. Madison is famous today because, in the decision, Marshall asserted the power of the Court to review congressional acts for constitutionality. Indeed, Marshall also had strong things to say about the executive’s obligation to act within the Constitution. But what most people aren't aware of is that it was nothing but a toothless lecture. Marshall ultimately avoided doing anything to protect Marbury’s rights, by concocting an argument about why he didn’t have jurisdiction to help. And, in handing Madison and Jefferson a victory, Marshall also arguably granted Congress a vehicle to strip the Court’s jurisdiction whenever it wished. Thus, Marshall opted to preserve the prestige of the Court by accommodating the president, Congress, and the preponderance of popular opinion.

What about Stuart v. Laird, the case that was far more politically explosive, since, if the Court struck down the law abolishing the new circuit judgeships, it would have triggered an all-out revolt by Jeffersonians in Congress?It is difficult to believe Marshall really thought abolishing the judgeships was okay. When it came to resolving the case, Marshall simply recused himself, for reasons that are not entirely clear. What does seem evident is that he didn’t want to be the one to have to run up the white flag. In Stuart, the Court actually upheld the removal from office of all the new Federalist judges—a dramatic expression of the Court’s impotence in the face of a serious political threat.

Franck is equally wrong in his claim that “after a brief decade or so following the Dred Scott case, the Court was as strong as ever.” Dred Scott was decided 1857. In 1868, a Southern newspaper editor named McCardle, in federal custody, challenged the constitutionality of military rule of the South. The move endangered Congress’s plan for brining the South back into the Union. Congress responded by using the weapon Marshall had granted it and stripping the Supreme Court of its jurisdiction to hear the case. The Court’s reaction, in this case involving the most basic of liberties, freedom from allegedly unconstitutional restraint? It bowed to Congress’s action, recognizing another fight it could not win.

Lastly, Franck insists that the failure of Roosevelt's infamous Court-packing plan had nothing to do with the New Deal-era Court's decision to back down from its assault on FDR's programs. In the service of this assertion, he can only say that "we are pretty sure" Justice Owen Roberts, the key swing vote, was not influenced by the threat against the Court. Franck tries to bolster this case by denying that anything would have happened if the justices had proceeded to invalidate other social programs. “Woulda, coulda, shoulda. Sheer speculation based on nothing much, I’m afraid,” he writes. Nevertheless, after the Court’s capitulation, newspapers screamed that the court had switched. Editorialists and pundits indicated the plan as in deep trouble, a fact that polls confirmed. At the same time, congressional leaders assured FDR they could get something through Congress if only he’d limit the number of new justices he wanted. It was only FDR’s stubbornness, and the untimely death of Senate Majority Leader Joseph Robinson, that brought the whole incident to a swift conclusion. If the Court, rather than capitulating, had struck down more New Deal measures in dramatic decisions that spring, it’s hard to believe it would have emerged unscathed. A correspondent for The Nation reflected that, “had the court invalidated one Administration measure last term, nothing could have prevented the President from winning.”

III.

From the left, Justin Driver has criticized our conception of the Court in a New Republic review of Friedman's book, The Will of the People. This critique is plagued by similar misconceptions. Nostalgic for the activism of the Warren Court, Driver denies that the Court is in tether with public opinion. He also accuses Friedman of advocating that Supreme Court justices act with slavish subservience to public opinion: “Scholarship that encourages the justices to conduct themselves in such a conformist manner seems unwise and even dangerous, not least because the justices on the current Court seem particularly ill-equipped to divine the preferences of a majority of Americans.”

This claim distorts, or even ignores, the book's thesis. The Will of the People never “encourages” the justices to be conformists or to “divine the preferences of a majority of Americans.” It is, rather, a response to those who accuse the courts of wrongly interfering with the majority will. It argues that the justices ultimately are accountable to public opinion and that over the long haul, on the salient issues, Court decisions and public opinion come into line. The book concludes by insisting that the question we should be worrying about is whether the Court is capable of doing the same job that Driver wants it to do: protecting minority and constitutional rights.

In fact, Driver half-admits that he is making this analytical mistake, but presses on nonetheless. He writes that he recognizes the book is primarily “positive,” which is to say it is a historical account of what the justices have done, and why, rather than a normative claim about what they should do. But, he insists, “the distinction between the positive and the normative cannot be drawn so neatly.”

To the contrary, that distinction absolutely should be drawn, in the service of analytical clarity. Especially in this time of hyperbolic commentary on the Supreme Court, it is important not to ignore what political science and history have taught us about how the justices are likely to behave, as we are fashioning expectations about how they should behave. What is called for, on the right and left alike, is some realism when it comes to our perception of judicial decision-making.

Take the Warren Court. Driver invokes the heroic tale of the Supreme Court's activism during the 1950s and 1960s, when it struck blows for racial justice, the rights of criminal defendants, and the downtrodden. It certainly did. But Driver neglects two salient points about that era. First, the justices’ blows for constitutional liberty and equality were not so much courageous moves taken in the face of public opposition as they were legal interpretations that made sense as a product of their times. While forward-leaning, the Court's decisions were well within the broad mainstream of public opinion: During this period, there were many who sought desegregation and praised Brown v. Board of Education when it came down (Brown was popular with 54 percent of the country), although of course there were opponents too. Second and more important to our thesis, when the Court outstripped public opinion too greatly, it engendered a backlash that caused it to rein in its efforts. Because ordering reapportionment of state legislatures was wildly popular, it happened quickly. By contrast, opposition to desegregation was so strong during this period that the lower courts had little success enforcing the mandate of Brown, and Congress had to step in with the Civil Rights Act of 1964. Similarly, much of the criminal-procedure revolution went down relatively easily because the public equated mistreating defendants with racial discrimination. But when the Court decided Miranda v. Arizona, eliminating confessions unless suspects were read their rights, at a time when crime rates were rising and rioting in urban ghettos was prominent, the public had had enough. Richard Nixon ran against the Warren Court, which had run squarely afoul of public opinion, and the Warren era ended.

Indeed, if anything illustrates how vulnerable an activist Court is to public backlash, it is the fate of Miranda. Driver writes that The Will of the People doesn’t dwell long enough on Dickerson v. United States, the 2000 decision in which Chief Justice Rehnquist re-affirmed the long-embattled Miranda rule. In his telling, Dickerson shows how a courageous Court can lead the way, turning even unpopular rights into popular ones.

But likely the only reason Rehnquist wrote the majority opinion in Dickerson was because he lacked the votes to overrule Miranda, which he detested, and figured he could do damage control by staying in charge. Indeed, since then, both his Court and Chief Justice Roberts’s have proceeded to quietly gut Miranda, until it becomes nothing but a façade. In 2004, for example, the Court held that although an un-Mirandized confession could not be admitted, any evidence found on account of it could! This very term, the Court has three more Miranda cases; in the two it has decided thus far, Miranda has been further whittled away. So much for heroics in defense of constitutional liberty.

To be fair, Driver makes several important observations. He is surely right that sometimes the Court can lead. Nevertheless, this is true only so long as the public is willing to be led, as the events subsequent to Brown v. Board of Education made clear. And, using Brown as an example, Driver makes the good point that sometimes a little political defiance can actually help the Court’s image—though again, as Brown bears out, this can happen only so long as public opinion is roughly in tune and the justices ultimately prevail. (When they back down, as they did after the New Deal, the justices look weak). Defiance of the Court was common in the early 1800s, and it tended only to lead to more defiance.


IV.

Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats' agenda? What will happen, in particular, with health care?

We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.

Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.

It’s possible, of course, that the Tea Party movement will grow and grow, support for health care reform will plummet in the polls, one or both houses of Congress will flip in the midterm elections, and Obama’s popularity ratings will fall through the floor. Anything’s possible. And if that all happens, the Court will have a lot more leeway to aggressively challenge Democratic legislation. After all, the Supreme Court went after George Bush’s Guantanamo policy at a time of great skepticism concerning that administration’s approach to the war on terror.

As for health care, it would be quite a trick for this Court to strike it down on the implausible claim that the mandate which requires all individuals to be insured exceeds congressional power. Even if five justices on the Roberts Court wanted to vote against the legislation, Justices Kennedy and Scalia are in a bind. They voted to uphold national power barring medicinal use of marijuana, on the grounds that Congress has control over a national market, and even purely “local” activity could affect that market. In light of that precedent, the constitutionality of health care reform seems like a no-brainer. Both of us believe that law matters to the justices, and we would be surprised to find that on that score, we’re too naïve.

Barry Friedman, a law professor at New York University, is author of The Will of the People. Jeffrey Rosen is the legal affairs editor of The New Republic and author of The Most Democratic Branch: How the Courts Serve America.

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