As readers of this blog know, my most recent project (discussed here in a New York Times editorial) attempts to bring some much needed clarity to the term "judicial activism" by defining it in reference to how often Supreme Court justices vote to invalidate state or federal legislation, or to overturn existing precedents. Criticism of this approach has taken two paths. Some critics, such as Matthew Franck writing here for the National Review, argue that my definition of “activism” drains the term of all meaning, rendering it an essentially empty and uninteresting concept. Others critics argue - as Larry Solum does here - that even if my approach has some value, certain votes, such as those to invalidate statutes on federalism grounds, should be excluded. (Larry also disputes my inclusion of votes to overturn precedent. My paper acknowledges the difficulties with using that as a measure of activism, so I will not rehash those arguments here).
Let me respond to these critiques in turn. First, by reducing the word “activism” to its objectively ascertainable elements, my work clearly does attempt to strip the term of the value-laden baggage it has been burdened with. Far from draining the term of all meaning, however, this approach is the only way to give the term any distinct content at all. As currently used in the political dialogue (usually by the right but increasingly by the left) “judicial activism” has come to mean little more than a judicial decision with which one disagrees. Franck, for example, defines activism as the “wrongful” use of judicial review. Used this way, the term serves no purpose other than to attach an inflammatory epithet to what is in fact a substantive disagreement about the meaning of the Constitution. But, as Franck admits, we do not as a nation agree on what the Constitution means, or how it should be interpreted. Consequently, any definition of "activism" that rests on assumptions about correct Constitutional answers will be meaningful only to those who already share those underlying assumptions. It is not, in short, my approach that has rendered the term meaningless; the term as currently used is meaningless because it is built on a premise – the correct meaning of the Constitution – which is itself contested.
Given all of this, why do I attempt to salvage the term by reducing it to its objectively verifiable components rather than advocate, as Andrew Cohen does in this Washington Post column (and as I myself have done in other places) for getting rid of it altogether? Because beneath the rhetoric and hyperbole, there is a valuable question to be answered here: in the face of contested Constitutional meaning, should a justice act with humility or hubris? Should a justice vigorously enforce the Constitution as she sees it, regardless of whether other justices or different branches of government disagree, or should she opt to use her power more cautiously, deferring to other Constitutional decision makers in all but the clearest cases?
That question, it seems to me, lies at the very heart of questions about the judiciary's role in our democratic system of government. It does not, however, have an easy answer. We tend to want justices who are both robust and restrained; justices who will both stand up and defer to elected officials. Scholarship like mine, showing which approach different justices have taken in the various types of cases that come before them, does not (and does not purport to) tell us which of these models of judging we as a society should prefer. But it does tell us a great deal about how each individual justice views his or her role in our Constitutional system. Discussing this within the rubric of the term “activism”, moreover, restores that term to what Larry himself argues was its original purpose – to measure the amount of “space” courts faced with constitutional questions leave to legislatures to make Constitutional judgments of their own.
But what of Larry’s suggestion that federalism questions (cases involving preemption, the Commerce Clause, section 5 of the 14th Amendment, section 2 of the 15th Amendment, and the 11th Amendment) should not be included in any objective measure of activism? Larry argues that these cases are fundamentally different because they involve the distribution of power between the state and national government, rather than straightforward questions of deference to democratic decision makers. But of course the proper distribution of power between the state and federal government is itself as constitutionally contested as the meaning of the Due Process Clause. So it is not clear to me why Larry accepts (or at least accepts for the sake of argument) that the latter raises meaningful questions of judicial deference but the former do not.
Nor is it self-evident that federal courts should be more deferential to state decision makers than to federal ones – it is Congress, after all, that is the Supreme Court’s co-equal branch of government. If what we are measuring is a justice’s readiness to use his or her judicial power aggressively, a willingness to invalidate federal statutes certainly is a relevant measure. Finally, the line Larry draws between structural and substantive Constitutional questions seems unstable to me. Surely the supporters (and perhaps even more so the opponents) of federal statutes such as the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the National Labor Relations Act – all passed and upheld under the constitutional provisions Larry says should be taken off the table – would be surprised to hear that judicial review of these statutes does not involve important questions of substantive rights. One can argue, as I suspect Larry would, that robust judicial review in these areas is good, but that does not mean that it should not be part of the measure of robustness in the first place.