Right now, Republicans, Democrats, liberals, and conservatives all agree that a huge problem needs to be addressed in our country. Congress, with the collaboration and approval of the president, has crafted a legislative response to the problem. The policy’s supporters, including members of Congress, the president, and his advisors, believed that they were working well within their constitutional authority. After all, Supreme Court precedents suggested that they had an expansive power in the relevant policy area. Moreover, many provisions of the policy that they enacted had enjoyed bipartisan support in the past. Yet to the surprise, shock, and consternation of those who had worked so hard to craft this policy and citizens who supported it, it turns out that the Supreme Court might be willing to strike it down as unconstitutional. How could this be? Would not the Supreme Court be committing an irresponsible act of judicial activism?
Liberal readers will recognize in the paragraph above the outrageous situation in which they think we now find ourselves. The tenor of oral arguments before the Supreme Court a few weeks ago suggests that a majority of the justices are considering voiding the individual mandate of the 2010 health care law, and perhaps even the whole law. Yet the law was designed and passed by the representative branches of our government to deal with problems in the health care market, problems that are acknowledged by large majorities of elected officials in both parties. Moreover, the idea of an individual mandate was originally hatched by conservatives, who now claim that it is unconstitutional since it has been enacted by a Democratic Congress. The individual mandate, its defenders say, is part of a program regulating interstate commerce, and innumerable well-established precedents of the Supreme Court hold that Congress has expansive powers under the commerce clause. Now it appears that the conservative members of the Court will ignore those settled precedents and void a law that was passed by the people’s authorized representatives. This, the liberal claims, is judicial activism of the most brazen sort.
Unfortunately for liberal readers, however, the first paragraph of this essay was not intended to describe Florida v. Health and Human Services, the case pressing the constitutional argument against the individual mandate. It was instead intended to describe another recent case, Boumediene v. Bush (2008). That case arose from Congress’s effort, working with the president, to address a widely acknowledged problem: the threat to national security posed by terrorism. Congress decided that meeting this threat required the invocation of the government’s war power, which includes the power to detain enemy combatants. The detention policy eventually developed was designed explicitly in light of the existing Supreme Court precedents, as well as an unbroken tradition of government practice, all of which holds that enemy combatants held outside the United States are not entitled to habeas corpus—that is, to review of their detention in American civil courts. Despite all this, the Supreme Court in Boumediene ruled that, contrary to the expressed will of the people’s representatives and long-established judicial precedent, alien enemy combatants detained outside the United States do have a right to habeas corpus. What was the liberal reaction to that act of brazen judicial activism? They cheered.
My point is simple but important. Both liberals and conservatives are sometimes justified in their complaints about judicial activism. But both are sometimes also guilty of approving judicial activism. Thus complaints about judicial activism almost inevitably appear hypocritical or at least somewhat self-deluded.
What is the cause of this phenomenon? It arises from our wandering far from but not completely unmooring ourselves from the Founders’ understanding of judicial power’s proper use. In its origins, judicial review was understood to be inseparable from the presumption of constitutionality. In other words, courts were willing to void unconstitutional statutes, but they were also inclined to give acts of Congress the benefit of the doubt. The idea was to strike down laws reluctantly that were clearly unconstitutional, but to uphold all other laws, including laws that were perhaps arguably unconstitutional, or that pushed the envelope, but whose supposed constitutional infirmity depended on highly contestable arguments that might be more or less persuasive. This was how the Supreme Court wielded the power of judicial review under the Great Chief Justice, John Marshall. And that was how the power of judicial review was presented by Alexander Hamilton in Federalist No. 78. Hamilton assured those fearful of an expansive judicial power that the Court would only void laws contrary to the “manifest tenor”—or obvious meaning—of the Constitution, that it would only strike down acts that were at “irreconcilable variance” with our fundamental law—a formulation that suggests that the courts would do what they could to reconcile statutes that at first appeared unconstitutional.
The modern Supreme Court, however, acknowledges the presumption of constitutionality less and less. It has created whole areas of jurisprudence in the realm of civil liberties and civil rights governed by “strict scrutiny,” a test of constitutionality that expressly rejects the traditional presumption and demands that the government demonstrate the necessity of its measures to the Court’s satisfaction, a procedure that John Marshall would have found surprising, to put it mildly. And where the Court’s doctrines do not call for strict scrutiny, we sometimes find the justices jettisoning the presumption of constitutionality anyway. This, in fact, is what the Court did in Boumediene, in which the Court’s opinion not once mentioned the traditional standard of judicial review. This is also what it may be about to do in Florida v. Health and Human Services. To my knowledge, the Court has never held that anything like strict scrutiny could be applied in a commerce power case. Yet at oral argument Justice Kennedy seemed to imply something like that when, after briefly acknowledging the presumption of constitutionality, he nevertheless went on to opine that the individual mandate must “bear a heavy burden of justification.”
We now live under a regime of what might be called discretionary judicial activism. Under this regime, judges and justices apply the presumption of constitutionality not as a matter of course in all cases (as was the traditional approach), nor even in a clearly-defined set of cases in which it still remains applicable (as was the mode until relatively recently), but simply when they want to—and don’t when they don’t want to. Both sides do this in the service of the kinds of causes they support.
I do not mean to suggest here that both sides are equally guilty of such activism. When conservatives wander away from the presumption of constitutionality, they usually do so in defense of genuine constitutional principles, such as federalism or a limited government of enumerated powers. This can hardly be said for the American left, which has frequently gone so far as to use the judicial power to invent novel constitutional rights (to “privacy,” for example) out of whole cloth. In this context it might, therefore, be more appropriate to speak of conservative judicial activism and liberal judicial hyper-activism. Nor do I mean to say that a ruling by the conservative wing of the court to invalidate the individual mandate would necessarily be a case of judicial activism; for, admittedly, even the most expansive readings of the Commerce Clause, going back to John Marshall, do indeed indicate that there is some limit to the federal government’s authority under this provision. My point is simply that the Court now rather routinely—sometimes for better reasons, other times for worse ones—pushes the judicial power beyond the very modest scope that the founders established for it by the presumption of constitutionality, and that this creates an atmosphere in which charges of judicial activism are plausible most of the time, from whomever they originate.
This does not yet explain fully why we continue to have bitter recriminations about judicial activism. If the Court has arrogated such authority to itself, and if both liberals and conservatives try to use this power, then why don’t both sides accept the expansive nature of the modern judicial power? Why don’t both sides try to win by pressing their best arguments on the Court and refrain from complaining about judicial activism when they lose? To explain this situation, we must return to my earlier observation that we have departed far from the Founders’ understanding of judicial review without having entirely abandoned it.
Precisely because the modern Supreme Court justices—and hence the American legal profession, as well as the citizenry at large—operate in some continuity with our legal past, we are somewhat aware that the Court should be guided by a presumption of constitutionality. The principle was too central to our jurisprudence for too long for it to have been entirely forgotten, even after decades of increasing disuse. Accordingly, today everyone acknowledges in principle that the Court should void a law only on the basis of unassailable constitutional logic, and not merely more or less plausible constitutional concerns, yet everyone also tends to forget this principle when his favorite political or policy preferences are at stake. The result, again, is mutual recriminations, equally plausible on both sides, about judicial activism.
One way to resolve this ongoing source of conflict would be simply to accept the modern regime of judicial activism. If we did this, both liberals and conservatives would learn to live with the idea that judges do not presume the acts of the political branches to be constitutional; that they are willing to void them not only on the basis of indisputable constitutional reasoning that can overcome such a presumption, but also on the basis of complex judgments about how to weigh competing constitutional and political values. Then, when either side loses, its partisans could complain that the Court erred without charging that it acted illegitimately.
This option, however, suffers from a disqualifying flaw: it is incompatible with the core American value of self-government under law. With regard to self-government, such judicial activism obviously exacerbates the necessary tension of judicial review with democracy: it involves not only unelected judges voiding the will of the people’s representatives, but their doing so with great freedom and frequency. This judicial activism is inconsistent with the rule of law because of its unpredictability. When courts subjected themselves to the discipline of the presumption of constitutionality, they only struck down laws when they had reasons that could be made very clear and persuasive and which, accordingly, laid down an intelligible principle for future decisions. When judges abandon that presumption, however, they allow themselves to decide issues of constitutionality on the basis of indistinct and highly contestable arguments that do not lend themselves to formulation as clear rules for the future. Simply put, a regime of judicial activism cannot stop itself from supplanting the rule of law with rule according to whatever seems persuasive to a majority of justices at the moment.
This leaves the remaining and preferable way of resolving the ongoing tension in our public life over judicial activism: both sides could earnestly and consistently embrace the presumption of constitutionality as a basic rule of judicial review. This would minimize the anti-democratic element in judicial review, as defenders of judicial restraint have often observed, since it would seldom require judges to set their wills against the will of the people. Moreover, it would be more consistent with our core aspiration to the rule of law, since it would require constitutional arguments of great force, evident to persons of competing ideologies, to overcome the presumption of constitutionality.
Of course, this solution to the problem would also require that conservatives and liberals largely give up their desire to appeal their policy defeats from the political forum to the judicial system. More specifically, liberals would have to surrender judicially invented personal rights (to, say, abortion and habeas corpus review to alien combatants held outside the United States), while conservatives would have to give up the desire to overturn certain aspects of big government through merely plausible arguments about the endlessly debatable scope of the commerce power or the requirements of federalism.
That is a heavy price to pay in terms of the particular policy preferences we hold as political and ideological partisans, but it is worthwhile in support of the values all Americans can hold in common: self-government, the rule of law, and a public discourse that does not require the routine stigmatization, by one side or the other, of the decisions of the Supreme Court.