Stop Complaining About 'Judicial Activism'

Supreme Court nominations matter. As Paul Waldman noted in a recent piece for the Washington Post, the Court's decisions are "consequential and far-reaching." Given recent health issues affecting 82-year-old Justice Ruth Bader Ginsburg and the very real possibility of a Supreme Court vacancy opening up in the next two years, it is worth taking a fresh look at the process by which judges are nominated and confirmed -- a process which can serve to educate the public about how the judiciary is performing its vital constitutional role and whether a judge understands that role.

In recent years, the confirmation process has been dominated by extended, fruitless discussions of the supposed scourge of "judicial activism." At a time when the political branches of government are claiming unprecedented authority over our lives, liberty, and peaceful pursuit of happiness, we should shift the focus to the judiciary's critical role in protecting our constitutional rights.

We do not live in a purely majoritarian democracy, but in a constitutional republic that prioritizes individual freedom. The Preamble of the Constitution states that it is designed to "secure the blessings of liberty." The Constitution created a federal government of enumerated, and therefore limited, powers, and it charges federal judges with the duty of protecting individual rights that we possess by nature, not by the grace of government. If the judiciary is to perform its function, it must ensure that government remains in its proper place as our servant, rather than our master.

But the default rule in constitutional cases today makes that impossible. Under the so-called "rational basis test," which applies in all but a few cases implicating rights deemed "fundamental" enough to receive meaningful protection, the government's restrictions on individual freedom are presumptively constitutional. Individuals who claim that their rights have been violated are saddled with an impossible task -- refute every conceivable justification for the government's actions, however divorced from reality.

This effectively irrebuttable presumption of constitutionality prevents the judiciary from ensuring that the political branches do not violate our rights. As Damon Root explains in his valuable new book, Overruled: The Long War for Control of the U.S. Supreme Court, the rational basis test emerged from a Progressive legal movement that regarded individual rights as privileges to be given and taken away as the government saw fit. No surprise, then, that its emblematic legal standard, the rational basis "test," does nothing to limit government -- it was designed to do precisely the opposite.

In order to "secure the blessings of liberty," we need judges who are prepared to revisit this status quo. Judges must in every case engage in a genuine effort to determine the truth concerning the constitutionality of the government's actions, remaining neutral and requiring record evidence to establish that the government is demonstrably seeking to further constitutional ends through constitutional means. That is, they must do precisely the opposite of what they do under rationalize-a-basis review.

Recent Supreme Court confirmation hearings, however, have not focused on how judges should discharge their constitutional obligations. Instead, members of the Senate Judiciary Committee have spent inordinate amounts of time kvetching about "judicial activism" and seeking ritual pledges of judicial acquiescence to whatever the political branches decide. (For example, the terms "activist" and "activism" were used 103 times during Justice Elena Kagan's hearing.) From the amount of attention judicial activism receives, one would think that the Court is striking down legitimate policymaking efforts left and right. But the Court struck down less than 2/3 of 1 percent of the 15,817 laws that Congress enacted between 1954 and 2002. In any given year, it strikes down just three out of every 5,000 state and federal laws passed. If anything, the Court has been far too passive.

Unsurprisingly, nominees are eager to deny that they ever have been or will be activists. In return for promises of "humility," "modesty," and "restraint," nominees are confirmed after saying little of substance about what convictions, if any, they hold regarding how the Constitution protects individual freedom. And citizens learn little, if anything, about how the judiciary is actually performing its designated role as an independent check on government or if the nominee sufficiently understands and appreciates that role.

The confirmation process serves a critical function. But its educative potential has long gone untapped. An irrebuttable presumption of constitutionality in most areas of law should trouble anyone who believes that individual rights should not be left up to a vote. The confirmation process should focus on judges' recognition of that problem, and their willingness to engage it.