While the Court Takes on the ACA, America Takes on “Judicial Activism”

Whatever the Court decides with respect to the constitutionality of the Affordable Care Act, it will be a loss for all of us. It will more intensely polarize liberals and conservatives, pit the executive branch against certain members of the judiciary, and create more cynicism about the Court’s decisionmaking process. However, one excellent outcome of the Court hearing this case is that it has us talking more intelligently about “judicial activism” and when we can appropriately launch that criticism. Judicial activism has for too long been used in an entirely self-serving, activist way.

Jon Stewart, in a fairly fair and balanced take on the ACA, exposed both liberals’ and conservatives’ flip flopping on when they think it’s acceptable for the Court to override the democratic process. Orin Kerr, at The Volokh Conspiracy, has a great piece on the many meanings of judicial activism. This term has plagued our country since before the Warren Court, and a consistent understanding of its meaning would both help us more rigorously critique the Court and give us more sympathy for the Court’s rulings.

The debate on judicial activism also benefits us by forcing us to account for our own judicial philosophies. The one thing I’d like to add to the discussion is a rudimentary solution. If the real problem is “rulings based on personal or political considerations,” why not ask judges to account for their judicial philosophies? There are a number of reasonable ways to interpret the Constitution – evolving notions of liberty, textualism, original public meaning, purposivism, or some wacky combination. If each Justice, in some way, propounded his or her own results-neutral approach to the Constitution and was held accountable to it (not in any legal way, but socially accountable), we could feel more secure in knowing that the decisions are based on each Justice’s approach to the Constitution that is more abstract than the Justice’s personal politics in a particular case.  Even if any judicial philosophy is political at some level of abstraction- for instance, favoring personal liberty over economic liberty because of a general view that the Constitution favors non-economic freedoms- the Justices would at least have to adhere to that philosophy.  We wouldn’t have the problem of conservative Justices all of a sudden wanting to expand the Commerce Clause when marijuana is at issue.

Adhering to one’s neutral philosophy is challenging. Justices must also factor in precedent, and judicial philosophies are a complicated algorithm that may and should change over time. But I’d like to know how Justice Kennedy intends to decide on the constitutionality of the ACA, and I’d feel more secure about the legitimacy of the Court if he had a fairly well articulated view (outside of his rationale in any individual opinion) of how much deference he gives to precedent, how he approaches the Commerce Clause, etc. This may be asking too much of Justices, but we’re already asking them to decide the fate of most of our rights.  (I know Justice Scalia has a well-articulated view of constitutional interpretation, and I know he doesn’t follow it in inconvenient cases, and we all chastise him for this.  We also applaud him when he renders results that oppose his personal politics, as in free speech and criminal procedure cases.  I’d like to see this process happen for all of the Justices.)


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4 Responses

  1. Erik Encarnacion says:

    Hi again, Erica. I’ve spent some time thinking about this issue, and at times I’ve arrived at your view: it’d be nice if Justices explicitly pronounced their constitutional approaches so that we could hold them accountable to those theories; especially given that the constitutional text and pre-existing doctrine don’t always suffice as standards against which opinions can be measured.

    But I don’t think it’s enough, if the goal is accountability, to insist that Justices articulate their “results-neutral” theories of constitutional interpretation in advance. After all, Chief Justice Roberts and Justice Sotomayor both ostensibly articulated their constitutional views. But those views were so vague and simplistic so as to come off as disingenuous. (I’m thinking, in particular, of Chief Justice Roberts’s judge-as-umpire analogy.)

    So what else is needed besides asking Justices to articulate their results-neutral constitutional approaches, given the problem of vague theories? It seems, to get the accountability you want, the theory itself has to be more “rule-like” than fuzzy standard-like. (And this would make sense given your general preference to rules over standards.) A rule-like jurisprudence is what makes Justice Scalia’s approach–and originalism more generally–theoretically attractive. That is, originalism promises relatively concrete decisions in constitutional cases. Indeed, it seemingly promises more than it can possibly deliver; I’ve always thought originalism to be guilty of false advertising.

    Yet there are also limits to how specific we want our Justices’ constitutional theories to be. Imagine an infinitely wise Justice whose theory can, upon request, deliver concrete predictions on how to rule in any particular case. Wouldn’t this theory stand in some tension with the cases-and-controversies requirement, or at least some rule of decorum, which holds that Judges should wait to hear cases before deciding them?

    One final thought. For what it’s worth, I find something like Thayerism more and more appealing these days, since it seems to be fairly deferential to the legislature, and gives some degree of predictability, without totally giving up the right of judicial review. The problem with Thayersism, it seems, is that it would be tantamount to “judicial activism” in its own right were it to be implemented, since lots of doctrine would seem incompatible with it.

  2. Jonathan Perle says:

    Professor Goldberg,

    Generally, I agree that it would be more satisfying if the justices would clearly articulate their judicial philosophies so we could hold them to account – logically, if not in actuality – for their decisions. However, I take exception to your assertion that there are a “a number of reasonable ways to interpret the Constitution – evolving notions of liberty, textualism, original public meaning, purposivism, or some wacky combination.” The problem is that certain theories of interpretation are, in and of themselves, designed to allow judges to reach political conclusions. (Among the methods you have cited, evolving notions of liberty and purposivism stand out as being particularly unconstrained in their application.) Therefore having justices articulate such standards as their benchmark would not have the effect of meeting your laudable goal, which is to have a standard set ex-ante against which we can measure individual decisions.

    In support of this view, I would simply point out that you took Justice Scalia as your lone example of a justice who has a “well-articulated view of constitutional interpretation.” You allege “I know [Scalia] doesn’t follow [his view of constitutional interpretation] in inconvenient cases, and we all chastise him for this.” I will disregard, for the moment, your allegations that he does not follow his judicial philosophy in all cases and assume, for the moment, that it is true. What does that say? It says that in Justice Scalia, you have found a judge with a judicial philosophy that is clearly articulated and which you can use to determine whether the result of any particular case has consistent with the theory. You also find that in a number of cases Justice Scalia has failed to follow the philosophy and that the failure is clear to a great many people (“we all chastise him for this”).

    Now, I would ask how you can possibly apply this method to a number of the philosophies that permeate the liberal side of judicial interpretation? Justice Breyer has some very well-articulated views about judicial interpretation. The problem is that such views produce no standard against which he can be judged. He has substituted negative liberty, which lies at the heart of what the Framers were doing, with a positive liberty view. The result is theory which specifically lays the foundation for judges to make constitutional rulings based on how the outcomes will affect the participants, in effect allowing judges to rule based on political considerations and theories of utility maximization.

    Similarly, how does one find a neutral standard in Justice Sotomayer’s famous assertion that judging should be informed by “empathy?” Empathy as a principle for a judge sentencing a defendant in a specific case is a fine attribute, but it is wholly inadequate as a framework for constitutional decision making. Justice Sotoymayer also said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This personal view of judging, in which I would place the “evolving notions of liberty” philosophy, cannot be analyzed ex-ante in any serious way because the standard is so loose as to be non-existent. An “evolving notion of liberty” is whatever a judge would like it to be.

    The reason why you are able to “chastise” Scalia, in contrast to Breyer or Sotomayer is because their judicial philosophies do not create a standard by which they can be judged. When the standard becomes the greater good or personal experience there can never be a better or worse answer. So, while I applaud your sentiment, I cannot see how it can be effectively implemented.

  3. steph tai says:

    Got tuckered out talking about the ACA with other folks this week, so please excuse me for the short comment, Erica. Anyway, I’m generally sympathetic to calls for decisionmakers (including judges, but actually also regulators, enforcers, etc) to explain their decisionmaking philosophies. But I wonder where this call can actually be interjected? After all, if anything, the current appointments process seems to create disincentives for explaining judicial philosophies prior to confirmation. And then afterwards–I just don’t know. Are there any sticks or carrots for this sort of thing beyond just calling for it as a normative thing?

    And I also wonder how, then, you might view judicial minimalists (like, say, Cass Sunstein, Justice O’Connor) and their arguments that judicial minimalist approaches helps balance concerns of extremism from all sides. On one hand, it could be considered itself a judicial philosophy; on the other hand, successful calls for all justices to express their judicial philosophies might have the effect of actually tipping the scales towards what minimalists might regard as “extremism” at least in the sense that it would limit the ability for justices who express commitment towards non-minimalist philosophies to actual engage in minimalism when they might choose to do so.

    Sorry if I’m not expressing myself particularly eloquently here–I might have just made my point too meta for my own good.

  4. Erica Goldberg says:

    Thanks for your comments, so much.

    It would be interesting to see if encouraging Justices to propound their judicial philosophies and account for their decisions would skew philosophies in a particular direction. Perhaps that is desirable. Certainly, a philosophy would have to be more specific than “judges are umpires” but not so specific that there is no place for actual judging, humanity, or “empathy,” so long as that empathy is results neutral. I do not believe that the philosophy would have to be so specific that it would be obvious how a judge would rule in every case (as certain facts or context or precedent may affect the results), but if a Justice were to say that precedent is so important that he/she is willing to overturn it only in cases of obvious and extreme error (like a habeas standard), then the Justice should have to explain why a particular case meets that standard. (However, other Justices can allow for philosophies that are less deferential to precedent.)