Judicial Restraint

How Kermit Roosevelt III’s judicial theory undermines the very case for judicial philosophies.

The conservative attacks on “judicial activism,” a long-standing GOP target, have intensified in recent years. In his July 19, 2005, speech nominating John Roberts to the Supreme Court, President George W. Bush said that he wanted judges who will apply the law, “not legislate from the bench.” Earlier that spring, after the federal courts refused to order the feeding tube restored to the brain-damaged Terri Schiavo, then-House Majority Leader Tom DeLay promised reprisals against the federal judges involved. At around the same time, Senator John Cornyn of Texas gave an astounding speech in which he linked recent attacks against judges, including the murder of a federal judge’s husband and mother, to public frustration with judicial activism. Cornyn said that anger over “political decisions” by judges “builds up to the point where people engage in violence.” And this year, a bill was introduced into Congress to create an inspector general to investigate and oversee the federal courts.

Of course, there is an irony in that the conservative focus on judicial activism is coming at a time when seven of the nine justices on the Supreme Court and a majority of federal judges were appointed by Republican presidents. This fact aside, there can be little doubt that the attacks on judicial activism will continue. Such attacks may have much to recommend them as a political tactic, but is looking at our courts through the lens of activism/restraint useful, in substantive terms, when judging judges?

Kermit Roosevelt III, a former Supreme Court clerk and current law professor at the University of Pennsylvania, says no. In his new book, The Myth of Judicial Activism, Roosevelt argues that the criticisms of judicial activism are misguided because there are no clear criteria for determining what is activism and what counts as restraint. Both conservatives and liberals sometimes want courts to defer to legislatures, and sometimes to invalidate laws themselves. Both sides sometimes want courts to affirm precedents and, sometimes, to overrule them. Conservatives, for example, want no deference to government affirmative action programs, or government takings of private property for economic development purposes, or federal laws authorizing suits against state governments. On the other hand, they want judicial deference to laws regulating sexual practices between consenting adults, laws regulating abortion, and government actions advancing religion. For liberals, of course, the reverse is true. And thus the usefulness of “activism” as an organizing concept is limited.

Instead, what matters, argues Roosevelt, is not whether a court’s decision is stepping over its bounds or not, but whether it is “legitimate”–in other words an “appropriate exercise of judicial authority.” Legitimacy is thus a normative concept that can be used in evaluating particular decisions. It is not, as others have used it in the past, a measure of how the decision is regarded by the public. One striking aspect of Roosevelt’s definition is its binary quality: As he defines legitimacy, it exists or it doesn’t; a case either is or isn’t an appropriate exercise of judicial authority. To Roosevelt’s credit, he does not fall back on a Justice Potter Stewart–type standard of “you know it when you see it” when determining a ruling’s legitimacy. Instead, he contends that legitimacy is to be determined by whether the rulings show the appropriate degree of deference to the political process.

The book is written in a clear, accessible style that makes it understandable to non-lawyers. And its scope is impressive. In the process of advocating a theory for appraising constitutional decisions, Roosevelt offers his views on virtually every controversial issue in constitutional law: detention of enemy combatants, gay rights, abortion, separation of church and state, the death penalty, campaign finance reform, and abortion. However, although I generally agree with Roosevelt’s positions on these issues, I have serious reservations about his central thesis. Indeed, in his desire to chart a sweeping constitutional theory, Roosevelt unwittingly proves the difficulty–and even futility–of the exercise. This, in turn, raises the question of whether any sweeping theory of constitutional interpretation is needed at all by our judges.

Roosevelt believes that the legitimacy of a court’s decision can be ascertained by measuring its deference–or lack thereof–to the political process, as determined by a set of five criteria. The first factor is “institutional competence,” which he leaves problematically ill-defined. Roosevelt says, for example, that legislatures have more competence in making complex factual determinations and that legislatures generally are more competent in assessing the desirability of laws, which justifies the usual presumption of constitutionality applied by courts. But he says that other factors–especially the lessons of history and defects in democracy–provide instances where judicial deference is not appropriate.

The second criterion are the lessons of history themselves, a factor that is almost entirely focused on matters of equal protection. If there is a history of discrimination against a group, then it means that there should be less deference to the political process. Most obviously, the long, tragic history of racial discrimination justifies more aggressive judicial scrutiny of laws disadvantaging racial minorities. Interestingly, Roosevelt does not include within the lessons of history the role of judicial precedent, as some conservatives–including the present Chief Justice–would. Nor does he include “traditions” that often have been the basis for judicial analysis in constitutional cases, especially in deciding which rights are protected under the Due Process Clause. For instance, in Moore v. East Cleveland, the Court stressed traditions in striking down a zoning law that kept a grandmother from living with her grandchildren. In other words, it is not clear how precedent or tradition would fit within Roosevelt’s theory of judicial review.

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