While the Court Takes on the ACA, America Takes on “Judicial Activism”
posted by Erica Goldberg
Whatever the Court decides with respect to the constitutionality of the Affordable Care Act, it will be a loss for all of us. It will more intensely polarize liberals and conservatives, pit the executive branch against certain members of the judiciary, and create more cynicism about the Court’s decisionmaking process. However, one excellent outcome of the Court hearing this case is that it has us talking more intelligently about “judicial activism” and when we can appropriately launch that criticism. Judicial activism has for too long been used in an entirely self-serving, activist way.
Jon Stewart, in a fairly fair and balanced take on the ACA, exposed both liberals’ and conservatives’ flip flopping on when they think it’s acceptable for the Court to override the democratic process. Orin Kerr, at The Volokh Conspiracy, has a great piece on the many meanings of judicial activism. This term has plagued our country since before the Warren Court, and a consistent understanding of its meaning would both help us more rigorously critique the Court and give us more sympathy for the Court’s rulings.
The debate on judicial activism also benefits us by forcing us to account for our own judicial philosophies. The one thing I’d like to add to the discussion is a rudimentary solution. If the real problem is “rulings based on personal or political considerations,” why not ask judges to account for their judicial philosophies? There are a number of reasonable ways to interpret the Constitution – evolving notions of liberty, textualism, original public meaning, purposivism, or some wacky combination. If each Justice, in some way, propounded his or her own results-neutral approach to the Constitution and was held accountable to it (not in any legal way, but socially accountable), we could feel more secure in knowing that the decisions are based on each Justice’s approach to the Constitution that is more abstract than the Justice’s personal politics in a particular case. Even if any judicial philosophy is political at some level of abstraction- for instance, favoring personal liberty over economic liberty because of a general view that the Constitution favors non-economic freedoms- the Justices would at least have to adhere to that philosophy. We wouldn’t have the problem of conservative Justices all of a sudden wanting to expand the Commerce Clause when marijuana is at issue.
Adhering to one’s neutral philosophy is challenging. Justices must also factor in precedent, and judicial philosophies are a complicated algorithm that may and should change over time. But I’d like to know how Justice Kennedy intends to decide on the constitutionality of the ACA, and I’d feel more secure about the legitimacy of the Court if he had a fairly well articulated view (outside of his rationale in any individual opinion) of how much deference he gives to precedent, how he approaches the Commerce Clause, etc. This may be asking too much of Justices, but we’re already asking them to decide the fate of most of our rights. (I know Justice Scalia has a well-articulated view of constitutional interpretation, and I know he doesn’t follow it in inconvenient cases, and we all chastise him for this. We also applaud him when he renders results that oppose his personal politics, as in free speech and criminal procedure cases. I’d like to see this process happen for all of the Justices.)