top of page
  • Ashley Baker

Holding the Line: Scalia-style strict constructionists are standing in the way of a “living Constitu

Recent decisions by the U.S. Supreme Court and California’s highest court have put the focus on the growing threat to the rule of law, national security and American society posed by judicial activism. In June alone, the U.S. Supreme Court discovered a constitutional right to federal court access for Guantanamo’s enemy combatants (Boumediene v. Bush) and a constitutional prohibition on executing child rapists (Kennedy v. Louisiana). One month earlier, the California Supreme Court was equally inventive, finding a right to gay marriage in the state’s Constitution (In re Marriage Cases).

While this spate of high-profile activist decisions may have set a new record, the problem of lawless courts has been with us for decades now. Eminent Supreme Court observer Stuart Taylor recently observed, “The steady accretion of both state and federal judicial power since the 1950s has left a malleable mass of hundreds of precedents straying everfurther from the original understanding of the constitutions and laws they purport to be ‘interpreting.’” It’s enough Scalia-style strict constructionists are standing in the way of a “living Constitution.” It's enough to make Justice Antonin Scalia’s wish for judges who “give [laws] the meaning they bore when the people adopted them” seem quaint.

The American people—the real victims of judicial activism—are acutely aware of the problem. A Rasmussen opinion poll found that 60 percent of Americans believe Supreme Court justices have their own political agendas, while only 23 percent believe that the Court decides cases impartially. Similarly, a 2005 survey by the American Bar Association revealed that Americans, by an almost two-to-one margin, agree that judicial activism “seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.”No wonder GOP voters rank the appointment of Supreme Court justices as a more important presidential election issue than the war in Iraq and want their presidential nominees to promise to pick Supreme Court justices in the mold of Scalia and Clarence Thomas.

In light of the public’s growing concern, the purveyors of judicial activism—and its handmaiden, the “living Constitution”—try hard to blur the distinction between activist and legitimate court decisions. So it’s important to clarify that true judicial activism is marked by the elevation of a judge’s policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the commonsense meaning or original intent of the constitutional or statutory text at issue.

The Supreme Court’s infamous Dred Scott decision, which reinforced the “property” rights of slave owners, is one of the earliest examples of judicial activism. However, in modern times, judicial activism has been championed and implemented almost exclusively by progressives. It is a favorite tool in the culture wars and is often couched in such feel-good terms as “protecting the powerless” and “expanding rights.” Barack Obama’s description of the proper judicial philosophy is typical: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Among its other faults, such progressive descriptions of good judging are little more than a license for unbridled judicial discretion. For example, does understanding what it’s like to be African-American instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor, white job applicant who lost a job to the affluent beneficiary of minority hiring preferences?

Liberals are fond of alleging that strict constructionist judges—that is, non-activists—allow a conservative ideological bias to influence their judicial decisions. In fact, conservative judges can’t compete when it comes to judicial activism, because they’re not even trying. Sure, their biases sometimes cloud the objective interpretation they shoot for. But many liberal jurists don’t even shoot for objectivity. Instead, they are proud of belonging to the school of judging exemplified by Barack Obama’s yearning for a judge who will “bring in his or her own perspectives, his ethics, his or her moral bearings.”


Within the broad category of judicial activism, there are many shades and fl avors. Here are some of the common forms that activism takes:

> Construing black as white. Arguably, the most blatant form of judicial activism is when courts conclude precisely the opposite of what the relevant statutory or constitutional provisions require. A classic example is the precedent-setting case Cohen v. Brown University (1st Circuit, 1996), which dealt with an administrative “interpretation” of Title IX, dating back to the Carter administration, that requires quotas and similar preferential treatment for female athletes, often at the cost of eliminating thriving men’s teams. The Cohen court found this interpretation to be fully consistent with Title IX’s command that “No person … on the basis of sex, be excluded from participation in … or be subjected to discrimination under any education program or activity.” Worse yet, the court blessed the quota, despite Title IX’s explicit requirement that the statute “not be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance.”

> Twisting doctrines beyond recognition. The quintessential example of this form of activism is the Supreme Court’s mangling of the Establishment Clause, which was intended to prevent the establishment of a national church. Beginning with Everson v. Board of Education (1947), the Court has misinterpreted the First Amendment’s command that Congress “make no law respecting an establishment of religion” as erecting a “wall of separation between church and State.” The wall grew higher over the years, leading to decisions such as Santa Fe v. Doe (2000), in which the Supreme Court ruled that student-led prayer at high school football games is unconstitutional.

> Inventing new rights. Who can resist inventing a new constitutional right when it feels so good? Certainly not the Ninth Circuit, the nation’s most liberal federal appeals court. Consider Nelson v. NASA (2008), in which the appeals court decided it is unconstitutional for NASA to require its contract employees to undergo background investigations. Unfortunately, the background checks collide with the “constitutional right to informational privacy” conjured up by the Ninth Circuit.

> Ignoring old rights. With so many new rights popping up, it’s hard to focus on the old ones. In Irish-American Gay, Lesbian and Bisexual Group v. Boston (1994), Massachusetts’ highest court saw no First Amendment problems when a trial judge ordered the sponsors of Boston’s annual St. Patrick’s Day parade to allow a homosexual organization to participate. The court had no use for the First Amendment’s guarantee of freedom of expression and assembly— that is, until it was unanimously reversed by the U.S. Supreme Court.

> Playing policymaker. Activist judges imagine themselves to be policymakers, and often, they’re unabashed about it. Witness Justice Harry Blackmun’s justifying, in Roe v. Wade (1973), a constitutional right to abortion: “This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day.” As Blackmun’s explanation demonstrates, one of the tricks of the judicial activist’s trade is to hide behind lofty but empty verbiage. For the nonattorney learning to spot cases of judicial activism, one of the surest signs is language that sounds like it came out of a self-help book rather than a legal text. For example, the California Supreme Court’s recent gay marriage decision was grounded in the newly discovered constitutional right to have one’s “family relationship accorded dignity and respect equal to that accorded other officially recognized families.” In choosing such feel-good language, the Court hopes no one will notice that it is nowhere to be found in the California Constitution.

Similarly, Planned Parenthood v. Casey, the Supreme Court’s 1992 decision reaffirming Roe, finds the constitutional right to abortion in the broader “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Three decades earlier, the groundwork for Roe was laid when the Supreme Court, in Griswold v. Connecticut (1965), struck down an unenforced state law banning contraceptive use as a violation of the constitutional right to privacy. That right cannot be found in the text of the Constitution, but the Court explained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” These New Age emanations from the minds of Supreme Court justices would be humorous if they didn’t have such destructive consequences.


The obfuscation of activist judging can be found, not only in the decisions themselves, but also in the hand waiving of activism’s enablers, who increasingly try to blur and distort the definition of judicial activism. Judicial activism is not the overturning of actions by the other

branches. While judges owe some deference to the legislative and executive branches, the required deference is not absolute. To the contrary, courts are obliged to strike down statutes, regulations and the like when they clearly confl ict with a higher source of law, such as the Constitution. Don’t be fooled by the defenders of liberal judicial activism, who have spent the last decade trying, when convenient, to redefine judicial activism as lack of deference to Congress and state and local legislatures. A particularly blatant example of this tactic is a June 2007 New York Times editorial decrying Parents Involved v. Seattle, which struck down race-based student assignment plans in Seattle and Louisville. The Times declared the decision to be “the height of activism: federal judges relying on the Constitution to tell elected local officials what to do.” The Times apparently failed to notice that its description of outrageous “activism” applies equally well to the most sacred of all Supreme Court decisions, Brown v. Board of Education.

Judicial activism is not the failure to follow precedent. Courts must generally adhere to their past decisions and those of higher courts. But, as law professor Gary Lawson notes, “if the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution.” To say otherwise, particularly of the Supreme Court, is to say that judicial activism can never be corrected. Judicial activism is not every decision that angers conservatives. Nor is it every decision that arguably should have gone the other way. Conservatives have every reason to be angry about judicial activism, but they handicap the battle against it when they overuse the term.


What’s so bad about occasionally stretching the Constitution to achieve a truly important result? Judicial activism threatens, not only the rule of law, but also the American political process and, potentially, each and every American. > Unrestrained power. Because judicial activism lacks any standards, it cedes unchecked power to judges. Justice Benjamin Curtis’s words, in his Dred Scott dissent, remain true to this day: “When a strict interpretation of the Constitution … is abandoned, … we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

> Undemocratic. The progressives who fuel judicial activism from inside and outside the judiciary are committed to using the courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means such as legislation and ballot initiatives. Often, these agendas have been explicitly rejected by voters and legislators, as we saw most recently with the gay marriage decision in California and the U.S. Supreme Court’s Gitmo decision. It’s instructive that liberals fear the overturning of Roe precisely because it would return abortion law to the democratic process.

> Elitist values. Judicial activism is not anti-democratic in a haphazard way. Instead, it is part of a concerted effort to impose the values of the intellectual elite on the average American. When the Supreme Court, in Romer v. Evans (1996), struck down a Colorado ballot initiative because it supposedly evinced “animosity” towards homosexuals, Justice Scalia remarked in dissent that his colleagues were enforcing, not the Constitution, but “the views and values of the lawyer class from which the Court’s Members are drawn.” The Supreme Court is fond of citing “evolving standards of decency” to hide the huge gap between its values and those of the American people. But sometimes judges are more honest about the gap, as in Tennessee v. Middlebrooks (1992), where the Tennessee Supreme Court vacated a death sentence, with a plurality of justices opining that “the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”

> Reliance on international law. It is no coincidence that activist judges are increasingly relying on international law. After all, when you’re discovering new rights, you may not be able to find any support in the myriad of domestic sources of law. At best, the reliance on international law fuels judicial activism. At worst, it undermines American sovereignty. But that’s apparently a plus for Justice Ruth Bader Ginsburg, who has expressed a hope that our nation will discard its “Lone Ranger” approach to interpreting the U.S. Constitution. Does that include looking to the law of the Arab nations when interpreting the Constitution’s protection of women’s rights?

> The withering of constitutional amendments. The classic defense of the “living Constitution” is that the Framers could not foresee the future. However, the Framers, well aware of that limitation, provided us with a democratic method of constitutional evolution, namely the amendment process. But the amendment process, which requires a democratic consensus at both the federal and state level, is such a nuisance, making it very unattractive to the intellectual elite. Because of the availability of an easy alternative—judicial activism—there has not been a single substantive constitutional amendment in nearly four decades. Compare that to the previous 100 or so years, which saw about a dozen pivotal amendments, including the elimination of slavery and the enfranchisement of African-Americans and women.

> Distorts the political process and prevents compromise. Justice Scalia said it best in his dissent in Planned Parenthood v. Casey. He noted, “National politics were not plagued by abortion protests, national abortion lobbying or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed … but that disagreement was being worked out at the state level.” Scalia went on to compare the political aftermath of Roe to the tragic consequences of Dred Scott: “By banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the [Casey] Court merely prolongs and intensifies the anguish [wrought by Roe].”

> A circus in the Senate. The judicial confirmation process has become a political circus, starting with Robert Bork in 1987 and continuing through Bush appeals court nominees such as Miguel Estrada and Bill Pryor. Nearly everyone bemoans the circus, but it’s the inevitable result of judicial activism, which sanctions the politicization of judging while also raising the stakes in selecting judges who will wield nearly unlimited power.

> Hurts Americans. Lastly and most importantly, judicial activism is a threat to us. The “living Constitution” is such a philosophical, political and jurisprudential disgrace that it’s easy to overlook its greatest evil—the harm done to U.S. citizens when the Constitution and laws that protect us are pushed aside with the stroke of an activist judge’s pen.


Lest we lose sight of judicial activism’s threats, consider these examples: AN 8-YEAR-OLD GIRL was raped by her stepfather. Police found her bleeding profusely. A laceration to the wall of her vagina had separated her cervix, causing her rectum to protrude into her vaginal cavity. Emergency surgery was required to save her life. Her stepfather, Patrick Kennedy, was sentenced to death under a Louisiana law permitting capital punishment for the rape of a child under 12. Because she survived, the Supreme Court (Kennedy v. Louisiana) vacated Kennedy’s death sentence, saying it was inconsistent with the “evolving standards of decency that mark the progress of a maturing society.” For decades to come, the girl and her family will live with the fear that her attacker will one day get out of jail and seek vengeance.

A PROFOUNDLY DEAF STUDENT in Arizona was denied a sign-language interpreter—provided to other deaf students under the Individuals with Disabilities Education Act—because he attended a Catholic high school. In 1992, the U.S. Court of Appeals for the Ninth Circuit (Zobrest v. Catalina Foothills School District) concluded that providing him with an interpreter would be a violation of the First Amendment’s Establishment Clause. Because his school was too religious, the court said, the interpreter would cause “the two functions of secular education and advancement of religious values or beliefs [to be] inextricably intertwined,” thus violating the wall of separation erected by the Supreme Court. However, on appeal a year later, the Supreme Court could not bring itself to pretend that providing the boy with an interpreter threatened to establish a state or national religion. The Court reversed the Ninth Circuit by a frighteningly narrow 5-4 margin, ultimately avoiding the travesty that one more activist on the Supreme Court—the type Obama would select—would have created.

THOUSANDS OF COLLEGE ATHLETES nationwide have lost their scholarships, their teams and their dreams because in 1996 the U.S. Court of Appeals for the First Circuit approved government-mandated gender quotas for varsity athletes, in utter defiance of the explicit requirements of Title IX (Cohen v. Brown University). As a result of this precedent-setting decision, men’s teams have been eliminated across the country—often with little or no notice—because that is the easiest way for colleges to comply with the quota. On average, more than 50 male athletes have been eliminated on every NCAA campus.

THE WELL-BEING OF ALL AMERICANS is at risk when activist decisions endanger national security. Examples include ACLU v. National Security Agency (U.S. District Court, 2006, reversed)—striking down the Terrorist Surveillance Program in an anti-Bush screed—and Nelson v. NASA—making it unconstitutional to require background checks for many federal employees. These types of activist courts leave the nation more vulnerable to terrorist attacks and raise the specter of counting judicial activism’s victims in the millions.

As these examples make abundantly clear, the threat to ourselves and our nation posed by judicial activism is more than philosophical. It menaces our lives and our dreams. Americans recognize the threat, and we can fight back. On the national level and in the states, we can say “no” to judicial activism by electing presidents, governors, congressmen and state legislators—or in some states, judges themselves—who don’t believe that a judge’s “moral bearings” should trump those of the people.

The 2008 election looms large. The next president may well have the chance to fill several Supreme Court vacancies and, if he serves eight years, will surely appoint more than a third of the nation’s federal judges. The post-election balance in the Senate will determine whether activist nominees can be stopped and whether strict constructionists can be confirmed. Understand the problem of judicial activism and you will understand what’s at stake this November when you go to the polls.

Curt Levey is executive director of the Committee for Justice, which promotes the rule of law and judicial nominees committed to protecting it.


bottom of page