Are Conservative Justices the Real Activists? A Rebuttal in Six Points

Let us begin with a definition, because most arguments about judicial activism are arguments about a word that nobody has bothered to define. If "activist" means "a judge who strikes down laws," then every judge who has ever enforced the Constitution against a legislature is an activist, including John Marshall. If it means "a judge whose decisions I dislike," then the word carries no information at all. Neither meaning is useful.

So here is a useful one. A judge is activist when he decides a case by something other than the law's text and history, and substitutes his own judgment of what would be best. On that definition, how often a court strikes down laws tells you nothing. What tells you something is the reason it gives.

That is the claim I am going to defend, and I will do it the way an argument ought to be done: state the charge at its strongest, then answer it in six numbered points.

The charge, stated fairly

The claim goes like this. The conservative justices are the real activists. They have overturned precedents that had stood for decades, including Roe v. Wade and Chevron. They have struck down acts of Congress, as in United States v. Lopez, and acts of legislatures, as in District of Columbia v. Heller. They have limited the reach of statutes that the political branches passed with large majorities. A Court that reaches out to invalidate democratically enacted laws is, on this account, imposing its own preferences, however much it dresses them in the language of the Founding. And the conservative interest in "originalism" is only a convenient method that happens to deliver conservative results.

That is not a stupid argument. It rests on something true: the conservative justices have, in fact, struck down laws and overruled precedents. And some conservatives have made the mistake of defending those decisions by pointing to the outcome rather than the method. If the only defense of a ruling is that it is the right result, the critics have a point.

But the charge confuses two different things, and the whole rebuttal turns on keeping them apart.

Point one: judicial review is not judicial will

The power to strike down a law that conflicts with the Constitution is not a usurpation. It is the job. Chief Justice Marshall explained why in Marbury v. Madison (1803): the Constitution is supreme law, an act of the legislature repugnant to it is void, and "[i]t is emphatically the province and duty of the judicial department to say what the law is." If a statute and the Constitution conflict, the court must choose, and it must choose the Constitution.

Hamilton had made the same argument fifteen years earlier in Federalist 78. The Constitution is "fundamental law," and judges must treat it as such. "[W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former." That is the origin of judicial review, and it is the opposite of activism. A judge who enforces the Constitution against a statute is following the people's higher law over the legislature's lower one.

Notice the second half of Hamilton's argument, which is the half critics forget. He wrote that if judges ever "exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." Hamilton, the great defender of judicial review, defined the vice precisely: substituting pleasure for law. That is the definition I gave above.

So the first answer to the charge is this. Counting the laws a court has struck down is a measure of how many laws conflicted with the Constitution, in the court's view. It is not a measure of will. A Court that struck down nothing would not be restrained; it would be useless. See Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not for the limits on the power, and for how Marshall used it, read Marbury itself.

Point two: look at the reasoning, not the tally

If we cannot judge a court by its count, how do we judge it? By asking one question of every opinion: what is the source of the rule?

An opinion rests on text when it can point to the words of the Constitution or statute and show that the rule follows from them. It rests on history when it can show what the words meant to the people who adopted them. It rests on precedent when it shows that an earlier case settled the matter. And it rests on something else, on policy, on evolving values, on the justices' view of fairness, when none of those is available.

Heller is a good test. The Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." In 2008 the Court held, five to four, that the Amendment protects an individual right to keep a firearm in the home for self-defense, and that the District of Columbia's ban on handguns and its trigger-lock rule for other firearms violated it. Justice Scalia's opinion rested on the text and on the founding-era understanding of it. Justices Stevens and Breyer each dissented, joined by Souter and Ginsburg, and read the Amendment differently. That is a dispute about what the text meant. Whoever is right, the disagreement was about law.

Lopez (1995) is similar. A federal statute made it a crime to possess a gun near a school. The Court, in an opinion by Chief Justice Rehnquist, held that Congress had exceeded its power to regulate commerce among the states, because possessing a gun is not itself commercial activity and the connection to commerce was too attenuated. The majority said that the commerce power "is subject to outer limits." Whether or not you agree, the opinion is about what the Commerce Clause means. For the details see United States v. Lopez Was the First Commerce Clause Limit Since the New Deal.

Point three: the test is whether the judge will rule against his own side

Here is the most useful test I know. If a judge is a partisan in a robe, his rulings will line up with his policy preferences. If he is applying the law, there will be cases where he rules against what he would like. So look for those cases.

They are not hard to find.

1. The flag-burning cases. In Texas v. Johnson (1989), the Court held, five to four, that burning an American flag in political protest is protected speech. Justice Scalia joined the majority. In United States v. Eichman (1990), another five-to-four ruling, he joined again. Scalia, a man who loved the flag and thought flag-burners contemptible, voted to strike down the laws punishing them, because the First Amendment says what it says.
2. Justice Thomas in the Texas sodomy case. In Lawrence v. Texas (2003), the Court struck down a state law criminalizing same-sex intimate conduct. Justice Thomas dissented. He wrote that the Texas statute was "uncommonly silly" and that if he were a member of the Texas legislature he would vote to repeal it. But he could not find in the Constitution the right the majority announced, and so he would leave the question to the voters. That is the opposite of activism: a judge saying he dislikes a law and cannot strike it.
3. The marijuana case. In Gonzales v. Raich (2005), the Court held that the federal government could apply its drug laws to homegrown medical marijuana that was legal under California law. Justice Scalia concurred in the judgment, on the ground that Congress's power to regulate commerce extends to intrastate activity when it is part of a larger regulatory scheme under the Necessary and Proper Clause. Justice Thomas dissented. Whatever one thinks of the result, Scalia here upheld a federal law that a limited-government conservative would be expected to dislike.
4. The health-care mandate. In NFIB v. Sebelius (2012), Chief Justice Roberts, appointed by a Republican president, voted to uphold the individual mandate as a tax. Conservatives have argued about that opinion ever since, and John Roberts Called the Mandate a Tax, and Conservatives Still Argue About Why sets out the argument. It shows at least that "the conservative justices" are not a bloc who vote for whatever the Right wants.

A court of conservative activists would not produce those results. They are what you get when judges try, sometimes imperfectly, to follow the law where it leads.

Point four: the Warren Court as comparison

An honest comparison needs a benchmark. The Warren Court, from 1953 to 1969, is the usual one, and I will take it seriously rather than caricature it.

Some of its work was sound on any method. Brown v. Board of Education (1954) is the best example, and a good originalist case can be made for it, as Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case explains. Reynolds v. Sims (1964) and the one-person, one-vote cases rested on the Equal Protection Clause. Justice Harlan's lone dissent in Plessy had pointed the way decades before.

But parts of the record are what the charge of activism is really about. In Griswold v. Connecticut (1965), the Court struck down a ban on contraceptives by finding a right of privacy in the "penumbras" and "emanations" of several amendments. That phrase is from Justice Douglas's opinion, and it is the opposite of reading a text. Even sympathetic scholars have found the reasoning thin; Griswold v. Connecticut and the Right to Privacy Built From Penumbras looks at it. Miranda v. Arizona (1966) required a set of warnings before police questioning, a code that appears nowhere in the Fifth Amendment's text. And Roe v. Wade (1973), which is a Burger Court decision but the heir of the same method, found a right to abortion in the Fourteenth Amendment's concept of liberty, a result that some scholars who favored the outcome criticized as weak law, as Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result shows.

The point is not that every Warren Court decision was wrong. It is that their typical method involved finding constitutional rights that the text and the history did not supply. That is what the definition of activism catches.

Now compare Dobbs v. Jackson Women's Health Organization (2022). It overruled Roe and Casey. Critics call that activism, because it overturned a precedent. But look at what the Court actually did: it returned the question to the elected branches. The result of Dobbs is not that abortion is banned by the Court; it is that the Court stopped deciding the question and let legislatures decide. A court that gives power back to the voters is behaving in a way that is hard to call willful. For the full treatment, see Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent.

Point five: overruling a precedent is not activism by itself

The critics' best card is precedent. Conservative justices have overruled long-standing cases. Isn't that the Court acting on its own preferences?

Not necessarily, and here the answer is a principle: the Court's job is to follow the Constitution, and a precedent that conflicts with the Constitution is not the Constitution. The justices, from every school, have overruled precedents they thought wrong, and the country has been better for several of those reversals. Brown repudiated Plessy's separate-but-equal doctrine. West Virginia State Board of Education v. Barnette in 1943 overruled a decision that had been handed down just three years before. Lawrence overruled Bowers v. Hardwick. The list of overrulings that Americans celebrate is long, and From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule gives it.

What distinguishes a defensible overruling from an activist one is the method. A good overruling shows that the earlier case was wrong on the law, explains why, and weighs the reasons for keeping settled law, such as reliance and workability. That is the stare decisis analysis, and it is a real constraint. Whether a particular overruling meets the standard is a fair subject of argument. That is a long way from saying that overruling itself is the sin.

Point six: the real activism is the unseen kind

The last point is the most important. The charge of activism looks at what is visible: a Court that strikes down a statute makes news. It misses the quieter forms of judicial will.

A judge is activist when he reads a statute to mean what Congress should have said rather than what it did say. A judge is activist when he finds a right nobody had noticed for a hundred and fifty years, and the Constitution's text is silent. A judge is activist when he decides a case on the basis of a theory of "evolving standards" that happens to track the preferences of his social circle. These forms leave no obvious tally, but they are the ones Hamilton warned of.

The best argument for textualism and originalism is that they bind the judge. A judge who must find his rule in the words and the history cannot simply announce that justice requires a result. Another way to say it: the method does not guarantee conservative outcomes, and sometimes yields outcomes conservatives dislike, as the cases in point three show. That is a feature. The method is a discipline, and Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen explains why.

What the critics get right

I promised to give the other side its due, so let me do it.

First, the tally of overruled precedents is a fair thing to weigh. A court that overturns settled law often is not showing the restraint it claims, and conservative judges should be held to the standard they set. The test is the reasoning in each case, and the burden should be on the Court that departs from precedent.

Second, results do sometimes track politics, and anyone who tells you otherwise is not paying attention. Judges are human. Some conservative opinions have been weak, and some conservative judges have drifted from their method. The answer is to criticize the opinion on the merits, not to treat the whole enterprise as fraudulent.

Third, the label "originalist" does not settle a case. Originalists disagree with one another. The method narrows the range of reasonable answers. It does not eliminate disagreement.

The case in brief

1. Activism means substituting the judge's will for the law's text and history, and striking down a law is no proof of it, since judicial review is Hamilton's and Marshall's design.
2. The right test is the reasoning of the opinion: does the rule come from the text, the history or precedent, or from policy?
3. Judges who follow the law sometimes rule against their own preferences, as Scalia did on flag burning and Thomas did in the Texas case.
4. The Warren Court's method often found rights in "penumbras" and prophylactic rules, while Dobbs returned a question to the voters.
5. Overruling precedent is defensible when the earlier case was wrong on the law and the stare decisis factors are weighed, and the most dangerous activism is the unseen kind, in which judges read in what is not there.

What you can do: pick one Supreme Court opinion that made news and read only its first ten pages, looking for the sentence that says where the rule comes from, then decide for yourself whether that source is the law or the justices' preference.