The Limits of Empiricism

Seriously, this Sunday Review Article by Adam Liptak is perverse:

If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.

But these decisions are outliers when measured against the court’s overall record over the last nine years.

It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent.

But that is, of course, a ridiculous measure. Because the question is not merely how many statutes the Court strikes down, but whether it is enacting a political agenda, as opposed to appropriately enforcing constitutional boundaries in so doing.

Let me unpack that a bit. Brown v. Board of Education was a case that applied the Fourteenth Amendment's Equal Protection Clause to strike down state laws that required African-American children be educated separately from white children. It struck down laws that created a legally mandated, state enforced apartheid. Even though Brown was the decision that sparked "Impeach Earl Warren" campaigns throughout the South, the fact is that I have not ever seen a persuasive argument that Brown was wrongly decided as an application of the Fourteenth Amendment. I have seen critiques of how the Court distinguished its earlier "separate but equal" cases into oblivion, as being less intellectually honest than just admitting they were wrongly decided, but no reasonable view of the Fourteenth Amendment exists under which state enforced apartheid can stand.

Yet, under Liptak's approach, Brown, faithfully applying the text Fourteenth Amendment, is a data point for determining the Warren Court was a judicially activist court.

Just as would be Lochner v. New York, which found that state maximum hour laws violated the "due process" clause of the Fourteenth Amendment, which, the Court found violated because

Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts.

One must, I suppose, admire the sheer brass of Justice Peckham's sniff at "somewhat vague" state powers, which comes almost in the same breath as his declaration that a provision which allows for the deprivation of life, liberty, and property as long as "due process of law" is afforded acts to categorically preempt a statute regulating the hours of work. No such limit on state power exists in the text; the Court simply made it up, because the majority disapproved of the legislation.

That both decisions--one plainly enforcing the Constitution's terms, and the other patently grafting onto the text a legal principle that cannot be found in it--equally count in determining the "activism" of the Court at a given time shows one of the limits of quantitative empirical analysis. Not all decisions striking state (or federal) legislation are equally reflective of activism. Some are simply correct enforcement of the constitutional boundaries, while others are clearly political acts, overriding majoritarian decisions on a flimsy basis. The great majority, of course, are not so clear cut.

You'll note that I am not addressing any controversial cases here; my point tonight is not to argue for my vision of constitutional interpretation against, say, that of John Roberts or William Rehnquist. Indeed, there are cases where I would agree that liberal justices have been guilty of judicial activism--William Brennan, and, for that matter, Thurgood Marshall, both of whom I admire in many ways, in death penalty cases glossed over the fact that the death penalty is expressly referred to in the Constitution; it's a little hard to plausibly argue that it inherently violates the document that refers to it approvingly, even though I agree with them that it is bad public policy. (A better argument, one more grounded in the text and facts, is that of Jed Rakoff, that our current system fails to afford due process in capital cases. That I find entirely persuasive.)

Rather, my point is that the numbers don't provide the essential data; a decision can only constitute judicial activism in any meaningful sense if the Constitution does not, reasonably interpreted, proscribe the statute deemed to violate it.