Judicial Activism: "What the other side does while we play by the rules!"

Before I discuss my critiques of McCain's speech yesterday on judicial activism, as a partisan Democrat, I'd like to request that he continue to give more speeches along these lines.

Given all the internecine fighting among Democrats over the course of the presidential campaign, I can think of few better ways to unite the Democratic party than hearing McCain loudly proclaim his desire to move the Supreme Court rightward. As much as Clinton supporters may loathe Obama and Obama supporters may loathe Clinton (and those numbers will go down drastically over the course of the general election), many will be scared shitless by the prospect of President McCain replacing the aging "liberal" justices (more on that later), Stevens (age 88), Ginsburg (age 75), Breyer (age 69) and Souter (age 68) with "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist." (As an aside, I'm curious why McCain repeatedly leaves out Scalia in naming his model justices...)

For Democrats wanting to show a stark difference between the candidates and the long-term legacy their administrations would leave, it doesn't get much better than this. More Americans already think the Court is tilting too conservative than too liberal, yet McCain has just announced his intention to accelerate this trend.

In general, do you think the current Supreme Court is too liberal, too conservative or just about right? (9/14-16/07)

Too Liberal: 21%
Too Conservative: 32%
About Right: 43%
Unsure: 5%

In his speech, McCain repeats the typical Republican rant against judicial activism:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges.

...

The moral authority of the judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to cehck the abuses of other branches of government when it cannot even control itself.

Oddly enough, I agree with everything McCain says here. The judiciary is the only unelected branch of government. Unlike the executive and legislative, its legitimacy doesn't come from its representation of the will of the people, of having been voted into office. Rather, its power derives from its integrity. It must maintain its image of being apolitical, of deciding cases based on their merits and according to the laws passed and executed by the elected branches of government, rather than by creating rationales that support preferred outcomes. As McCain argues,

In the shorthand of constitutional discourse, these abuses by the courts fall under the heading of "judicial activism." But real activism in our country is democratic. Real activists seek to make their case democratically -- to win hearts, minds, and majorities to their cause. Such people throughout our history have often shown great idealism and done great good. By contrast, activist lawyers and judges follow a different method. They want to be spared the inconvenience of campaigns, elections, legislative votes, and all of that. They don't seek to win debates on the merits of their arguments; they seek to shut down debates by order of the court.

This very notion was explicitly stated by Justice John Paul Stevens, both in, and in response to, the Court's decision in the controversial eminent domain case of Kelo v. New London. In the majority opinion, Stevens wrote that "]n]othing in our opinion precludes any State from placing further restrictions on its exercise of the takings power... The necessity and and wisdom of using eminent domain... are certainly matters of legitimate public debate." Speaking before the Nevada Bar Association weeks later, Stevens declared that his own ruling was "unwise," but he "was convinced that the law compelled a result that [he] could have opposed if [he] were a legislator."

McCain, however, chose Kelo of all cases as one of three examples of judicial activism to mention in his speech. In all three cases, however, he attacked the Court's ruling without providing any rational for why they were wrong. They were wrong, it aseems, simply because they produced a result with which McCain disagreed. In each case, he criticizes their conclusions, yet he never engages with their logic, precisely what he accuses activist judges of doing.

In the case of Kelo, Connecticut law specifically allows eminent domain to be used to further economic development. Rather than lobby for Connecticut to change its law, McCain castigates the Supreme Court for upholding it, railing that "in the hands of a narrow majority of the Court, even the basic right of property doesn't mean what we all thought it meant since the founding of America. As the New York Times pithily points out, that definition has, by all accounts, changed considerably: "He did not mention that in 1789 many women could not own property, and African Americans were property, but he did criticize the idea that values evolve over time." Nor did he mention Connecticut's General State §8-186, upon which the Kelo decision revolved: "The economic welfare of the state depends on the continued growth of industry and business," and "that permitting and assisting municipalities to acquire and improve unified land... for industrial and business purposes... are public uses."


Moreover, study after study has shwon that it is the judges McCain declares to be models of restaint and judicial passivity (I guess that would have to be the opposite of activism) that are, by empirical measures, the worst offenders against his own standards.

In a 2005 New York Times op-ed entitled "So Who Are the Activists?" Yale Law's Paul Gewirtz and Chad Golder define a judge's activism as how often they have voted to strike down a law passed by Congress and signed by the president. As they explain,

Congress, as an elected legislative body representing the entire nation, makes decisions that can be presumed to possess a high degree of democratic legitimacy. In an 1867 decision, the Supreme Court itself described striking down Congressional legislation as an act of "great delicacy, and only to be performed when the repugnancy is clear." Until 1991, the court struck down an average of about one Congressional statute every two years. Between 1791 and 1858, only two such invalidations occurred.

Of course, calling Congressional legislation into question is not necessarily a bad thing. If a law is unconstitutional, the court has a responsibility to strike it down. But a marked pattern of invalidating Congressional laws certainly seems like a reasonable definition of judicial activism.

Since the Supreme Court assumed its current composition in 1994 [NB: this was before Alito and Roberts replaced Rehnquist and O'Connor] by our count it has upheld or struck down 64 Congressional provisions.

The results of their study were stark. The percentage following each justice's name is the percentage of those 64 Congressional provisions they voted to strike down:

Thomas: 65.63
Kennedy: 64.06
Scalia: 56.25
Rehnquist: 46.88
O'Connor: 46.77
Souter: 42.19
Stevens: 39.34
Ginsburg: 39.06
Breyer: 28.13

They conclude that "Those justices often considered more 'liberal' - Breyer, Ginsburg, Souter and Stevens - vote least frequently to overturn Congressional statues, while those often labeled 'conservative' vote more frequently to do so. At least by this measure, the latter group is more activist."

In a similar study ("Who are the bench's judicial activists?") Chicago Law's Thomas Miles and Cass Sunstein examined the court's record from 1989 through 2005, looking at which justices were the most "political:"

We examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the EPA, NLRB, OSHA and FDA.

We used clear and simple tests to code the decisions of these agencies as either liberal or conservative. For example, we counted an environmental regulation as liberal if it was challenged by industry as too aggressive, or as conservative if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him neutral, in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him partisan. If a justice regularly voted in favor of agencies, we deemed him restrained, because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him activist, in the literal sense that he frequently used judicial power to strike down decisions of another branch.

Their results?

The Judicial Neutrality Award, for blind justice, goes to Justice Anthony Kennedy. From Kennedy's voting patterns, we are unable to detect even the slightest political tilt. He upholds liberal and conservative decisions at an identical rate -- slightly more than two-thirds of the time. Justice David H. Souter, a fellow GOP appointee, is the runner up.

Justice Clarence Thomas is the winner of the Partisan Voting Award for the most politically skewed voting pattern. When the agency decision is conservative, Thomas votes in its favor 84% of the time. But when the agency decision is liberal, Thomas votes in its favor merely 38% of the time -- a remarkable 46% swing.
Partisan voting can be found among some of the court's most liberal members as well. Justice John Paul Stevens is the runner up -- with a 40% swing.

...

The Judicial Restraint Award for the most humble exercise of judicial power goes to Justice Stephen G. Breyer. Overall, he votes to uphold agency decisions more than four-fifths of the time. Notably, Breyer votes to uphold conservative decisions 64% of the time.

The Judicial Activism Award, for aggressive use of judicial power, goes to a most surprising winner: Justice Antonin Scalia. He upholds agency decisions only about half the time. this is an impressively low number. Under established principles, to which all members of the court subscribe, agencies are supposed to get the benefit of the doubt.

Lastly, Chicago Law's Judge Richard Posner and William Landes, in a new paper entitled "Rational Judicial Behavior" examine the votes of all justices from 1937 through 2006. On the basis of their decisions in non-unanimous civil liberties cases and economic cases, they calculated the percentage of cases in which a justice took the conservative or liberal position, and rated them according to their ideology. For the current Supreme Court justices, the following are the fraction of cases in which they took the conservative position, along with their conservative rank out of all 43 justices from this time period.

RANK NAME % OF CONSERVATIVE DECISIONS
1 Thomas 82.2
3 Scalia 75.7
4 Roberts 75.3
5 Alito 74.0
10 Kennedy 64.7
29 Souter 37.4
31 Breyer 37.2
32 Stevens 34.1
35 Ginsburg 31.2

The results are striking: four of the five most conservative members of the Supreme Court over the last 70 years currently sit on the bench (the missing justice, ranking in at #2, was Rehnquist), while the "swing" vote, Justice Kennedy, the 10th most conservative justice. Of the liberals, only Ginsburg cracks the top 10.

As St. John's Brian Tamaha summarizes,

Through a statistical comparison, Posner shows that conservative Justices on the current court more consistently vote in accordance with their political values than do liberal justices; and that the current generation of Republican appointed federal court of appeals judges shows a significantly higher proportion of conservative votes than Republican judges over the past eighty years, (Republican appointed federal appellate judges from 1925-2002 vote conservative 55.8% of the time; Republicans appointed currently sitting judges vote conservative 66.9%); whereas there is no significant change in the conservative voting pattern (49.6%; 49.7%) of Democratic appointed jduges between these two periods, and a reduction in their liberal votes (43.5%; 39.5%)

Put more simply: the Supreme Court Justices and Appellate Judges appointed by Presidents Reagan, Bush and Bush vote consistent with their political views at a higher rate than previous Republican appointees, and at a higher rate than Democratic appointees. That's what the numbers show.

Once put in context, McCain's speech seems absurdly myopic. Given all of his rhetoric, McCain's ideal justices seem to be exactly the opposite of what he should look for in a potential nomination for the Supreme Court. Today's Chicago Tribune aptly sums up the gap between McCain's "judicial activism problem" and his solution for it:

McCain, seeking the Republican nomination for president, is apparently blissfully unaware that the vast majority of current federal judges were appointed by Republican presidents and that seven of the nine sitting U.S. Supreme Court justices and 12 of the last 14 Supreme Court justices were appointed by Republicans. As Pogo once said, "We have met the enemy, and he is us."