October 19, 2005

posted by Daniel J. Solove

How about Mahon v. Pennsylvania Coal -- a case that greatly expanded the rights of private property owners, but was almost certainly an example of legislating from the bench.

Generally people say the court "legislates from the bench" when it enacts* some policy that a majority of Americans oppose. Let's say, e.g., that the holding of those cases you mention above went on a ballot. Americans were asked: "Should evidence obtained in violation of a suspect's Fourth Amendment rights be inadmissible against him at trial?" I'm pretty sure how a majority of Americans would answer that question. (Which doesn't make the answer "right," of course.)

My suspicion is that every case that is said to be "politics, not law," or "judicial legislation" is a case where the court enacted something that a majority of Americans would not have ratified at the ballot box. So, in a sense, I'm not sure it's accurate to say that judicial legislation is something we only know when we see it. If we took a poll before a case was handed down to determine how a majority of American's felt, I think that would give us a good proxy to whether the court's holding would be called judicial legislation. The more Americans disagree would be positively correllated with a case later being known as judicial legislation.

*I realize courts don't "enact" anything. If someone can think of a better word, I'd love to hear it.

If legislating from the bench is another way of saying judicial activism, the definition I previously offered (see Less nebulous than you'd think, 9/23/05) was that "a decision is an act of judicial activism if it uses the judicial power to strike down a law that is not unconstitutional, or to uphold a law which is unconstitutional...[T]he conflation of "action" with "activism" is false; the court cannot be activist simply by adhering to the constitution. By contrast, it cannot be anything other than activist if it defers to the legislature by creating legislative authority where none existed. One can be activist not only by taking action where none is required, but by refusing to take action when it IS required."

Seen this way, Brown is clearly not an activist decision, even though it lead to great upheaval. It should be upheld because, even if the reasoning was spurious, the result was correct and even required under the equal protection clause, as Scalia (see Rutan, 497 U.S. 62, 95-96 n1) and Bork (see The Tempting of America) et al have pointed out. Griswold, on the other hand, was obviously activist; although it created no great waves at the time (to my knowledge, at least), it remains an activist judgement because it invented a new constitutional right from thin air.

I don't think most originalists (or conservatives) would be willing to go so far as Scalia indicates that Thomas does, and disavow stare decisis, period. Precedent is fine, as is doctrine, but precedent cannot lead to a result which cannot be reconciled against the text; it cannot change the meaning, which is why precedent must always follow (and where necessary yield to) the authoritative text, whether that text be a statute or the Constitution.

IMHO.

Mike -- You're basically saying that "legislating from the bench" means deciding something that people don't agree with. The phrase "legislating from the bench" has little meaning in my opinion. I don't think it advances the debate at all; if anything, it obfuscates. I wish it were dropped and folks explored more substantively the pros and cons of the conservative process-based approach toward constitutional adjudication I spoke about in this post. Although the post title was about the meaning of the phrase "legislating from the bench," the bulk of my post was asking about how more narrow readings of the Constutiton, more deference, and more adherence to precedent would play out in decisions other than Roe v. Wade.

Simon -- your move to eliminate the distinction between striking down legislation versus upholding it is fine, but your definition of activism basically seems to boil down to anytime the Court interprets the Constitution in a way you believe is wrong -- whether that means upholding a law it shouldn't uphold or striking down a law it shouldn't strike down. If this is the definition, then judicial activism becomes nothing more than a way of saying that the Court got it wrong.

As to your argument on text, the problem is that the text of the Constitution can be notoriously vague in parts. And there are parts where the text doesn't seem to match how it has been interpreted. Consider the 11th Amendment. It explicitly says that people can't sue "another State" but it never says that people can't sue their own state. But the Court has read it to say that people can't sue their own states too. So much for following text. And Bruce Ackerman in We The People Vol. I has a very interesting argument that if we were true textualists, the 13th, 14th, and 15th Amendments were not ratified according to the proper procedures set forth in the constitutional text. What do we do there? Where is the administrative state mentioned in the Constitution?

The problem, in short, is that we've departed so far from the text that I don't think it is plausible to go back. And that's why precedent is the only thing giving any stability to the system.

Dan,
I'll try to answer all those points at some level, in two posts, starting with your point about the eleventh amendment (mainly because my intention to write some "quick initial thoughts" has sprawled into something larger and I need to catch my breath!).

I haven't really studied the eleventh amendment in any depth (that having been said, it is relieving to read that "Eleventh Amendment jurisprudence has become over the years esoteric and abstruse and the decisions inconsistent", Killian & Costello, The Constitution: Analysis & Interpretation, 1992 Ed., at p.1521, so evidently my greenness can compare not entirely unfavorably with the acknowledged incoherency of formal doctrine), so at risk of embarassing myself...

It seems very tenuous to construe the Eleventh Amendment, explicitly against its own terms, so as to preclude suits against a state by their own citizens.

The amendment was adopted in direct response to Chisholm v. Georgia, 2 U.S. 419 (1792). Accord discussion in Alden v. Maine, 527 U.S. 706 (1999), part I(b). Subsequent cases prior to the civil war tended to read the amendment as its text suggested it should be; see, e.g., Cohens v. Virginia 19 U.S. 264 (1821). The problem, it seems, sets in after the civil war, exemplified by Hans v. Louisiana, 134 U.S. 1 (1890) and Ex parte New York, 256 U.S. 490 (1921). These latter cases seem to stand for precisely the propositions offered by theorists like Jack Balkin and Lawrence Tribe, which I find to be highly suspect, namely the "Calabresi Fallacy" (see Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke at p.4) (noting that "our constitutional tradition, unlike [that of common-law jurisdictions such as Britain], is one where we venerate the document above all else" and warning against "mistak[ing] the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around"). That proposition was offered in explicit terms in New York, supra, in which the court held that what was important was not what the people actually agreed to, in ratifying the document, but rather, a more esoteric standard of broad principles "of which the Amendment is but an exemplification" (id. at 497).

Such an interpretation offers numerous problems instantly. It essentially argues that the narrowness (or, more positively, specificity) of the Eleventh Amendment is but a drafting error. But in Chisholm, Chisholm was not a citizen of Georgia; the case which provoked the Eleventh Amendment involved precisely the problem that the Eleventh Amendment's text resolves:

"The Amendment proposed by Congress and ratified by the States was directed specifically toward overturning the result in Chisholm and preventing suits against States by citizens of other States or by citizens or subjects of foreign jurisdictions. It did not, as other possible versions of the Amendment would have done, altogether bar suits against States in the federal courts."

Second, I do not agree that doctrinal discussion can overrule the explicit text of the Constitution or its amendments. It can inform - but not supersede. I have no objection to doctrine filling the gaps in the Constitution; it is, after all, "a constitution that we are expounding." I have no objection, therefore, and for example, to Weeks v. U.S., 232 U.S. 383 (1914) (and even Mapp v. Ohio, 367 U.S. 643, 1961), where the Court created binding doctrine which is endemic to giving teeth to the safeguards of the Constitution. Nor do I have any objection to the use of historical practise and structural inference to make clear constitutional provisions that are unclear. But what I am unwilling to do is to acknowledge the theory that says the Constitution is no more than a set of abstract principles, from which the text is but a distraction, which can be abused to meet the result desired by a Judge or which might temporarily be deemed expedient. Justice Kennedy spoke recently of the difference between the Constitution with a capital "C" and the constitution with a lower-case "c"; Kennedy's theory is that the latter is composed of the combined precedents, doctrines and traditions of the American courts and people, and that it is no less binding than the big-C Constitution. That is not the purpose of having a Constitution, it seems to me. While I don't dispute Kennedy's belief that there is a small-C constitution, I cannot agree with Kennedy - or with the court's recent jurisprudence - that this small-c constitution can supercede the terms of the big-C Constitution by fiat of Court ruling. This would be nothing less than a judicial usurpation.

If the terms of the Eleventh Amendment were unclear, I might see wisdom in the inquiry into the small-c constitution and the theoretical underpinnings of the amendment (although I feel such an inquiry would still not reach the unnatural result that is being grafted to it in modern jurisprudence, as discussed above) to extrapolate a broader meaning giving effect to the amendment. But the Eleventh Amendment is not unclear; it says, with admirable clarity and a complete absence of ambiguity or uncertainty, that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." If this provision can be re-interpreted such that its actual text is subserviant to the speculated intentions or doctrinal theories of the Framers, why cannot those clauses of the Constitution which deal with the minimum age for Representatives, Senators and Presidents be discarded or "updated" by courts, in light of the expanding lifespan of the American population? Why not assume that when the framers spoke of suits valued at $20 or more in the Seventh Amendment, they meant merely to express an abstract average amount of weatlth, and that the $20 value written into that amendment should be interpreted to mean suits that are worth in today's money what $20 was worth in 1791 money? Why cannot the grant of power over interstate commerce be re-interpreted to grant the Federal Government the general police power which the framers so assiduously denied it, by means of the enumeration of its powers?

In Cohens, supra, Chief Justice Marshall wrote:

"[A] defendant who removes a judgment rendered against him by a State court into this Court for the purpose of reexamining the question...does not commence or prosecute a suit against the State...[Even] [i]f this writ of error be a suit in the sense of the Eleventh Amendment, it is not a suit commenced or prosecuted "by a citizen of another State, or by a citizen or subject of any foreign State." It is not then within the [Eleventh] Amendment"

It's true that "for over a century we have reaffirmed that federal jurisdiction over suits against unconsenting States was not contemplated by the Constitution when establishing the judicial power of the United States." (Seminole Tribe v. Florida, 517 U.S. 44, quoting in part Hans, supra) (internal quotation marks and citations ommited). I am unconvinced that such power was uncontemplated, not least because it is unclear in what other venue but the Federal courts a person with appropriate standing and a live controversey involving a state's violation of, say, the contracts clause, might bring suit against a state, or against whom else they might bring it; I don't accept that every result that the framers did not explicitly predict that the text might facilitate is prima facie unconstitutional. In any instance, I do not think that this is reason enough for continuing to re-affirm Hans (cf. Welch v. Texas Highways Dept., 483 U.S. 468 at pp.495-6, Scalia, J., concurring). Perhaps sovereign immunity isa good idea, and perhaps it can be grounded elsewhere in the Cosntitution, but the Eleventh Amendment, by its own terms, forbids such an atextual, unoriginalist and ahistoric construction.

The other half of my answer is:

your definition of activism basically seems to boil down to anytime the Court interprets the Constitution in a way you believe is wrong -- whether that means upholding a law it shouldn't uphold or striking down a law it shouldn't strike down. If this is the definition, then judicial activism becomes nothing more than a way of saying that the Court got it wrong.

Regarding the operation of the 13th, 14th, and 15th Amendments, I haven't read Ackerman's thesis, but I've read various scattered arguments about the Civil War amendments and how they supposedly have this problem and that problem with ratification. Most of them seem to center around the premise that the amendments were not ratified by the requisite number of states, but since there are almost no states which have not now ratified those amendments, I think we have to conclude that while there may be some legitimate inquiry into when they legitimately went into operation, they certainly are in operation now. During his confirmation hearings, Scalia noted that "at some level...government is a practical enterprise, and some things, when they're done, [even if they're wrong] they're done, and you move on." I think that's good advice regarding Bush and I think it's good advice regarding the Civil War amendments. I'll try to read Ackerman's thesis sometime soon, though. These things are always interesting, even if moot.

The principal constitutional problem with the administrative state is the nondelegation clause; David Schoenbrod has an interesting book on this, but I'm really not sufficiently conversant with the arguments to offer much to that debate.

My question concerns more the practice of the court creating a law rather than reviewing laws passed by congress.For example,the Supreme Court has ruled it is unconstitutional for the Ten Commandments to be displayed in courthouses around the country.Stating the clause "Seperation of Church and State"which is not found in the Constitution.As far as I know there has never been a law proposed by Congress requiring the Commandments be displayed.I am researching the practice of "Legislating from the Bench" for a paper in my Government class and would like some clarification on instances like this where the Court is not reviewing a law but actually creating one.

"Legislating from the bench" may have a legitimate definition which I think has been well covered in the above commentary; however, the reality these days is that it means anything the courts decide that George W. Bush doesn't like or otherwise agree with. I notice it mentions the phrase being "thrown about rather vaguely and carelessly" and thats the ultimate truth behind Bush's whole presidency, careless.