Covering the Front and Back Pages of the Newspaper
July 7, 2005
LAW: 'It means just what I choose it to mean - neither more nor less"
Tom Maguire points us to an op-ed piece in the NY Times that purports to determine who are the most "activist" Supreme Court justices by measuring the frequency with which they use the Constitution to strike down democratically elected laws. This is only one form of activism - aside from the willingness to supersede democratic decisions, there are other types of activism, like the willingness to depart from precedent, the willingness to create new constitutional rules not derived from the text, and the willingness to reach out and issue new rules and broader remedies than required by the case at hand. But it would nonetheless be a useful measurement of that form, if honestly applied.
But honest is one thing this op-ed is not. The authors confine their analysis to striking down federal laws, and entirely ignore state and local laws, which make up a good part of the Court's Constitutional docket, including nearly the entire body of law dealing with issues like abortion, school prayer, and the death penalty. No honest person could defend this distinction, and the authors - in the finest tradition of partisan hackery - do not openly do so, instead mumbling about federal statutes having "a high degree of democratic legitimacy," by which presumably they mean to say that state laws do not. It would have been interesting to hear why state laws are such trifles that judges need pay them no heed, but no such argument was forthcoming. Predictably, some sources on the Left just ran with this bit of tripe without thinking about it, like Brad DeLong and one of the Kos Kidz. The only liberal I see over at Memeorandum who tries to justify this is Yale Law professor Jack Balkin, who acknowledges the problem ("it would be well worth running the numbers on state cases since 1994"), but then asserts without the comparable data that "the conservative judges on the U.S. Supreme Court tend to be fair weather federalists" anyway, and then throws his hands in the air and declares that "activism," since not well defined by these authors, must be indefinable and thus a useless term: "we should focus on who has the better interpretation of the Constitution, rather than on who is an 'activist.'"
In fact, I regard the willingness to overturn democratic decisionmaking as a fairly good proxy for judicial overreach. It's not a perfect one, since there are a variety of factors that distort the selection of cases that come before the Court, and of course there are plenty of cases where the clear command of the text of the Constiutution requires that a statute give way. But instead of giving us data that is genuinely informative, or at least acknowledging that the data here is misleadingly incomplete, the NY Times piece seeks to make a point by misleading those readers who won't think through the details. Par for the course.