On Judicial Activism

No constitutional office of the United States is bestowed by the formal approval of fewer people than federal judge. The President, with a bare majority of the Senate, may appoint to the position anyone he chooses. The entire process requires the concurrence of a mere fifty-two individuals. Picking a judge may seem easy, but its consequences can be complex and surprising indeed.

Under Article III of the Constitution, which establishes the judicial branch of the United States government, a federal judge serves during “good Behaviour.” By tradition, this means life tenure, unless impeached for “high Crimes and Misdemeanors” by a majority of the House of Representatives and convicted by at least two thirds of the Senate. Although thousands of men and women have served as federal judges over the course of the nation’s history, fewer than ten have been expelled from office. Fewer than twenty have even been impeached. As a practical matter, federal judges are rarely called to answer for their performance on the job.

As difficult as they are to remove, federal judges are equally difficult to demote. Article III explicitly prohibits the diminishment of a judge’s salary while in office, no matter how errant-or delinquent or unpopular-his or her decisions may be. On the whole, judges are easily the most independent constitutional officers.

How can it be that such government officials enjoy substantial power yet effectively answer neither to the people nor to Congress? The very touchstone of a democratic republic, after all, is that the exercise of power reflects the will of the people as inferred from electoral results. Could it be argued that federal judges are delegates of elected officials and, therefore, indirectly delegates or agents of the people? This argument is based on the notion that the procedure for appointing judges resembles a sort of delegation. An individual is screened and selected (by the President) to perform a specific task (judging). The analogy between judges and delegates does not seem particularly apt, however. An agent is generally conceived of as acting on the behalf of, or pursuant to the direction of, his master.

A judge, however, is not expected to act on any person’s behalf or pursuant to anyone’s direction. Indeed, he must do precisely the opposite in his official role, spurning not only personal affinities but all communication outside of the courtroom. Even if we were to conceive of a judge as a peculiar kind of agent, one that is charged with acting without concern for his master, the judge-as-agent could be brought to heel by his master when he is derelict in his duties, however they are framed. That is, the judge would be subject to effective oversight. Nevertheless, it is exactly the lack of oversight that makes the judicial office remarkable. If judges fit easily into the framework of the democratic republic, it is not because they are indirectly representative of the popular will.

In my view, judges fit into our democratic framework not because they choose to exercise their power in popular ways but because they do not actually exercise personal power at all. Alexander Hamilton captured this idea succinctly with his observation that federal judges have neither force nor will, only judgment. Unlike executing the law, which is the President’s role, or making the law, which is the Congress’s, judging is a passive process. A judge confronts the law as it is written and the facts as they have been placed in evidence. His power may be great over the parties before him, but almost none of it-if exercised properly-can be exerted to advance a judge’s own objectives. It is to guarantee this neutrality that he is given independence.

Consider a criminal case. Congress enacts a statute that makes certain conduct a crime and provides a punishment. Someone violates that law. The Attorney General, who is the President’s appointee, then prosecutes. Only upon the confluence of these events does the judge become involved. With the government and the defendant before him, the judge evaluates whether the specific acts committed by the defendant fall within the ambit of the statute. Whereas the Congress had broad latitude in formulating the substance of the statute and the President and his officers had significant discretion in their selection of targets and enforcement strategies, the judge has almost no discretion over the course and outcome of the prosecution. If the law has been correctly enforced against the defendant, the judge must announce the defendant’s conviction; conversely, if the law has not been correctly enforced against the defendant, the judge must acquit.

The role of the judge is thus limited to determining whether the law has been enforced “correctly.” This determination is traditionally conceptualized as having two elements. First, the relevant facts must be wholly and accurately established; second, the law must be faithfully applied to the relevant facts. The skeptic will wonder how it is that the judge can be thought to be any more intrinsically “accurate” or “faithful” than the prosecutor who comes before him. That is a fair question, and it gets to the heart of the role of the judge. Those terms are meant to depict the consequences of the decision-making process rather than any metaphysical qualities of the decisions themselves. That is, judicial determinations are presumed to be accurate and faithful exactly because they are made by someone acting solely as a judge: a person who is new to the dispute (and thus without any vested interest in the outcome), is drawing conclusions through due process of law in the context of an open and adversarial presentation (in contrast to a one-sided investigation), and is independent (not answerable to the President or Congress).

This presumption, it should be emphasized, does not rest on some unsubstantiated premise that judicial decisions are by their nature good decisions. That is to say, the argument is not that a decision is “good” because it is made by someone who acts like a judge; rather, a decision is “good” because it is made within an accuracy-enhancing procedure, and judicial decisions also tend to be “good” because that same procedure is the one that judges use. The Supreme Court has expressly acknowledged that the marginal improvement secured by this procedure can have constitutional significance even in the context of decisions that are not traditionally reserved to judges. In the 1970 case of Goldberg v. Kelly, the Court concluded that a state could not constitutionally terminate benefits to a welfare recipient without an adversarial hearing. In prescribing the indispensable elements of the constitutionally mandated pre-termination proceeding, the Court stated:

“The fundamental requisite of due process of law is the opportunity to be heard.” The hearing must be “at a meaningful time and in a meaningful manner.” In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.

The Court’s observations underscore the importance of several attributes that are intrinsic to judicial decision-making but typically absent from executive and legislative decision-making: a neutral arbiter, written notice to the concerned parties, confrontation of adverse witnesses, and opportunity for oral argument. Unsurprisingly, the Court found these attributes to be critical when rules are applied to “the facts of particular cases.”

The constitutional underpinnings of the Supreme Court’s decision in Goldberg v. Kelly remind us of an essential element of the judicial inquiry into whether the law has been faithfully applied. Judges must consider not just the relevant statute whose vindication the executive specifically seeks, but also the procedural and substantive provisions of law that protect individuals from governmental misconduct and overreaching. In short, judges must ensure that the statute at issue does not, in either its enactment or its enforcement, invade that sphere of constitutional liberty preserved for the individual.

Law and liberty will inevitably conflict. Every individual at his liberty may do anything he is physically capable of doing. An individual under law, however, may do only what the law has not proscribed, and this will certainly be less than what the individual might otherwise do. Thus, an individual cannot enjoy absolute liberty under the rule of law.

In this light, the rule of law seems distinctly unattractive. Even in that most salubrious of states, the democratic republic, absolute liberty is lost-subsumed to the will of one’s community. The loss of some liberty, however, can improve the value of the remainder. As Thomas Hobbes persuasively observed some three hundred and fifty years ago, too much liberty results not in happiness but despair:

During the time men live without a common power to keep them all in awe, they are in that condition which is called war, and such a war as is of every man against every man….

In such condition there is no place for industry, because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving and removing such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and, which is worst of all, continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish, and short.

In the face of such a prospect, we are only too happy to surrender some of our liberty to law. We continue to wonder, however, just how much liberty we should be surrendering. Too much liberty results in life that is “nasty, brutish, and short,” but, as the lives of people in the totalitarian states of the twentieth century made painfully clear, too much law is no better.

One can view the guarantees of individual rights in the Constitution as our nation’s documented consensus on where to draw the limits of law. At the Founding, we viewed the Constitution and the Bill of Rights as constraining the scope of the national government almost exclusively. That government, imperious and remote, seemed more likely to capitalize upon our collective abdication of individual liberty in a way that would degrade our lives rather than enhance them. We were understandably loath to abdicate too much.

At the same time, however, we left to the states relatively unfettered authority to intrude into spheres that we now consider inviolably personal. Most states lacked provisions analogous to the federal Bill of Rights. Our consensus on the appropriate limits of the law changed, however, by the end of the Civil War. During Reconstruction, congressional Republicans sought to prevent the reemergence of the sort of oppressive state law that had been increasingly relied upon to prop up slavery in the ante-bellum South. The Republicans thus proposed and spearheaded the ratification of the Fourteenth Amendment, whose terms imposed upon the states most of the provisions of the Bill of Rights. As a result, the line between law and liberty encroached further on the power of the state and gave individual liberty a wider scope.

The constitutional compromise between law and liberty has always been subject to dispute. Many people believe that the government is much more substantially limited in what it may do than is apparent on the face of the Constitution. Others contend the opposite. Occasionally, the dispute has resulted in the revision of the Constitution, as with the Fourteenth Amendment; most of the time, however, no such revision has occurred. In discharging his duty to determine whether the law has been faithfully applied, the judge in any given case must prevent a partisan in the dispute from getting the upper hand. In short, the judge must defend the constitutional compromise between law and liberty as memorialized in the text of the Constitution itself. To alter the compromise (or to allow it to be altered) is not faithfully to apply the Constitution but to amend it–to usurp a power reposed exclusively in the people of the United States.

Preserving the constitutional compromise between law and liberty requires federal judges to defer to the legislative and executive branches on all issues properly within the realm of the law. If the text of the Constitution does not preclude the government’s action, the judge must uphold it. He must do so even if the government’s action is patently unfair or plainly inappropriate, for determining that something is “unfair” or “inappropriate” without an independent standard for fairness or appropriateness requires an exercise of sheer will. And the power to direct government action pursuant to one’s own will is precisely the power that a judge lacks.

The judge’s duty to apply the law faithfully demands that he do more than merely defer to the political branches of government when they permissibly exercise governmental power. The very concept of law requires the judge to apply it in a manner that is both predictable and uniform. Predictability ensures that everyone knows what the law is at any given point in time. Uniformity ensures that the law is applied in the same way by any judge to any party anywhere in the country.

When a judge is swayed by his own sentiment rather than considerations of deference, predictability, and uniformity, he fails by definition to apply the law faithfully. This is the essence of judicial activism. It is impossible to say with certainty in any given case that the judge’s sentiments will lead him to a “bad” decision, but no one could say that they never would. Any of us would appreciate a judge’s merciful departure from a draconian law. How many of us, though, would appreciate a judge’s draconian departure from a merciful law? The remedy for a bad law is to change the law through legislative action, not to depart from it one way or the other in the courts. The solution, in short, is democracy–the political process–and not judicial activism.

Judicial activism is not always easily detected, because the critical elements of judicial activism either are subjective or defy clear and concrete definition. For instance, a critical consideration is the state of mind of the allegedly activist judge. Judicial activism means not the mere failure to defer to political branches or to vindicate norms of predictability and uniformity; it means only the failure to do so in order to advance another, unofficial objective. Occasionally, the fact that a judge has an ulterior motive is evident, but oftentimes it is not. We are left to infer the existence of an ulterior motive from the relative distances that separate the judge’s actual decision from the decision that would have been correct and the one that would have most perfectly accorded with the judge’s personal sentiments. This gives rise to another difficulty in detecting judicial activism, which is that we must establish a non-controversial benchmark by which to evaluate how far from the “correct” decision the supposedly activist judge has strayed. Occasionally this, too, is easy–but not always. Because of the inherent difficulty in detecting judicial activism with any certainty, many activist decisions may pass without significant criticism and many others may be labeled by particularly sensitive commentators as “activist” when they are not.

Perhaps the most notorious instance of judicial activism is captured in the century-old Supreme Court case, Rector of the Holy Trinity Church v. United States. Congress had enacted a statute declaring that:

it shall be unlawful…in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien…into the United States…to perform labor or service of any kind.

Because the defendant church had contracted with an English clergyman to come to New York City to serve as rector, the government brought suit under this statute. Both the trial and appellate courts ruled that the Church had violated the law. The Supreme Court disagreed. After observing that “this is a Christian nation,” Justice Brewer reached the remarkable conclusion for the Court that religious ministry could not have been the “labor or service of any kind” that Congress had intended to proscribe.

Justice Brewer plainly thought, and all of his brethren agreed, that his departure from the statute did nothing but benefit the American people. Even if it was well received at the time, the Court’s characterization of the country might not be so benignly received today, particularly as the basis for departing from a statute duly enacted by our democratically elected representatives.

The problem with the Court’s decision was that it undermined the predictability and uniformity of the law. Before the Supreme Court ruled, the statute was clear; afterwards, no one could predict its true scope. Moreover, lower courts would now be free to apply whatever exemptions they, too, thought Congress might have intended, regardless of the language Congress actually enacted.

Judicial activism can have consequences that are far more profound than the unregulated immigration of nineteenth-century English rectors. When applied not simply to arcane statutes but to the United States Constitution–the foundational document of our Republic–judicial activism inevitably works a seismic shift in the balance between government and individual and has often done so on divisive questions.

Take, for example, the question of whether an individual’s decision to end his own life is beyond the power of the government to regulate. After the people of the State of Washington rejected the ballot measure at the polls, several Washington residents brought suit and invited judges to give them what the legislative process would not: a governmentally enforceable right to assisted suicide. The United States Court of Appeals for the Ninth Circuit, which includes Washington and eight other Western states, eventually ruled for the plaintiffs, declaring that the Constitution guaranteed each of them a “right to die.”

This decision, though purportedly compelled by the federal Constitution, rested upon nothing written in that document. Eight judges of the eleven-judge panel hearing the case simply promulgated a new constitutional right, one unheard of in over two hundred years of American history. The Supreme Court, in Washington v. Glucksberg, recognized the Ninth Circuit’s decision for the rejection of democracy that it was and unanimously reversed, but not before rivers of ink had flowed in celebration or condemnation of a judgment that seemed intrinsically more political than judicial.

Perhaps the outcome reached by the Ninth Circuit was the better policy, arguably someone who is terminally ill and wants to end his life really should not have to act alone. It is certain that many people other than the plaintiffs in the Glucksberg case thought so. Even if it were true, which seems rather difficult to ascertain in any objective sense, this belief does not establish that the court made the right decision, because the court was wrong to make the decision at all.

Readers who resist this conclusion need only look at the experience of the people of Oregon. Unlike their northern neighbors, a majority of Oregonians went to the polls only a couple of years later and enacted a law giving a terminally ill individual the right to physician-assisted suicide. Nevertheless, just like their northern neighbors, the people of Oregon were rebuked by a federal court declaring that they had overstepped the scope of governmental authority. In that case, entitled Lee v. Oregon, a federal judge held that in his view there was “no set of facts” in which Oregon’s newly enacted assisted suicide law could be considered “rational.” That conclusion must have come as quite a surprise to the thousands upon thousands of Oregonians who voted for the law. Surely, the conclusion must have unsettled the view of the eight Ninth Circuit judges who had previously joined together in declaring that the Constitution guaranteed the very right to assisted suicide that the same Constitution was now being read to preclude the people of Oregon from enacting. This uncomfortable tension was resolved when the Ninth Circuit reversed the Lee decision and returned the issue of assisted suicide once again to the realm of political discourse, where it belongs.

Even for someone who cares not a whit about whether an individual has the right to assistance in committing suicide, these cases underscore the problems that arise when judges purport to apply the law but fail to apply it faithfully–the problems, that is, of judicial activism. The first of these problems is, of course, that our democratic republic descends into what Thomas Jefferson famously reviled as “oligarchy.” The will of one judge or a handful is substituted for the will of the popular majority–or, at the very least, the political representatives elected by and accountable to that majority. Moreover, because judges exert their will, when they do, by pronouncements applied retroactively in individual cases rather than by codified statutes or rules, the resulting “law” not only lacks democratic validity but predictability and uniformity as well. Decisions that manifest judicial activism do not, in short, amount to what we think of as “law” at all.

When it involves constitutional interpretation, judicial activism presents a unique additional problem. A judicially active interpretation of the Constitution shifts the dividing line between government power and individual liberty. That judge-made shift, unless subsequently repudiated by the Supreme Court, can be remedied only by a constitutional amendment. Ratification of such an amendment, which requires supermajorities at both federal and state levels, is arduous by design and, when undertaken, is rarely successful. The consequence of all of this is that judicial decisions redefining individual liberties distort the delicate balance of power between the branches of government. What Congress could once do by the relatively straightforward process of statutory enactment, it can thereafter do only by discharging the Herculean task of constitutional amendment.

Not only does judicial activism in whatever form hobble the political branches of government, it also undermines the judiciary itself. Courts, lacking the power to enforce their own judgments, rely on popular confidence in those judgments for their implementation. Judicial activism erodes this confidence and thereby erodes the efficacy of the judiciary as a whole. One need not look far to find the breakdown of confidence in, and resulting threat to the independence of, judicial decision-making. By far the most famous such incident occurred with the advent of the New Deal in the 1930s. Franklin Delano Roosevelt had been elected President after campaigning on the promise of federal relief from the widespread economic dislocation accompanying the Great Depression. Upon his inauguration, President Roosevelt proposed and, with the assent of the Congress, enacted into law an unprecedented program of economic reform. After the Supreme Court invalidated several popular statutes at the core of the President’s program, the President pursued a plan to “pack” the Supreme Court. He proposed to increase its membership so that he could appoint enough new Justices to win a majority in future cases. The plan was never executed because, faced with this threat, the Supreme Court relented and upheld subsequent legislation. It thus appeared that the Supreme Court very nearly became the casualty of its own judicial activism.

Far from being merely a product of the exigencies of the Great Depression, political assaults on specific judicial decisions still occur. In the last presidential election, both parties’ nominees openly criticized a federal trial judge in New York for his refusal to admit as evidence in a drug prosecution large amounts of cocaine seized by law enforcement officers. After President Clinton suggested on the campaign trail that the judge might resign his office, the judge reconsidered his ruling and reversed it. This incident, like the Supreme Court’s about-face sixty years earlier, raises the disturbing specter of judicial decision-making by popular will, and the fear that our judges might have become little more than politicians in robes.

What lesson can we learn from these experiences? Judicial activism generates a vicious cycle: it triggers a lack of confidence in judicial decisions which triggers political meddling which reinforces a lack of confidence in judicial decisions. A politician in robes is no judge at all. Once a judge imposes his will as legislator, he loses his democratic legitimacy. No one person in a democratic society of 270 million citizens should wield legislative power if only fifty-two people have approved of him. A judge who wields power like a politician enters the political process. Having forsaken neutrality, he will soon lose his independence. The people will allow a judge to be independent only for as long as they perceive him as truly neutral–forsaking decisions based upon his own interests and biases.

Thus, judicial activism encourages political interference both in the process of judging and selection of judges. One need look no further than the current battle between the White House and the Senate over judicial nominees for a glimpse of the extent to which the judicial appointments process has become politicized. Nor does the threat of political interference end after the judge is selected. A multitude of proposals have been offered in Congress to weaken the independence of the judiciary. Some take the form of constitutional amendments to impose term limits on judges; others have been nothing more sophisticated than calls for the impeachment of particular judges who have rendered unpopular decisions. These may be only harbingers of what is to come.

Fortunately, judges retain–at least for now–their independence to apply the law neutrally and faithfully. But so long as one judge indulges his own sympathies rather than following the text of the law before him, he will only make it harder for his colleagues to retain the courage to decide cases in faithful, predictable, and uniform ways.

Diarmuid F. O’Scannlain is a federal appeals judge with the U.S. Court of Appeals for the Ninth Circuit.