Editors' note: this piece is co-authored by Robert Alt.
With Elena Kagan set to appear before the Senate Judiciary Committee later this month, the issue of judicial “activism” is again leading the debate over judicial nominations.
But not “activism” the way conservatives understand it. There appears to be a coordinated effort by President Obama and liberals in academia, the media, Congress and advocacy groups to damage the reputation of conservative members of the Supreme Court by falsely characterizing them as activists who have “abandoned the principle of stare decisis” and who have broken their promises of “fidelity to the law” from their confirmation hearings.
By doing so, liberals hope to fool the public into believing that left-wing ideologues such as Kagan or Goodwin Liu are not the danger; conservative “activist” justices like Roberts and Alito are. Of course, nothing could be further from the truth.
Judicial activism -- real judicial activism -- occurs when judges write subjective policy preferences into their legal decisions rather than apply the Constitution impartially according to its original meaning or statutory law based on its plain text. Such activism is not a function of outcomes, but one of interpretation. It does not necessarily involve striking down laws; it may occur when a judge applies her own policy preferences to uphold a statute or other government action that the Constitution clearly forbids.
Dissatisfied with this logical and accepted definition, liberals have been striving to redefine judicial activism downward. Under one formulation, judicial activism occurs anytime that a statute is struck down, like the federal ban on independent political expenditures in Citizens United v. FEC. In another popular version, judicial activism is all-but-meaningless -- a term of derision that means little more than “I don’t like the policy outcome of this decision.” Both definitions of judicial activism are incorrect, and both are in full display in the debate over Citizens United and Ledbetter v. Goodyear Tire & Rubber Co.
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According to liberal critics, the Citizens United decision is “the logical expression of an activist pro-corporatist jurisprudence” and Ledbetter was part of a “campaign to restrict, rewrite, and squash anti-discrimination law.” Liberal activists have labeled a majority of the justices on the Roberts court as activists with a “rightward, pro-Big Business tilt” who have “disregarded precedents and long-held principles” in order to decide cases “in favor of large corporations.”
On the contrary: the majority in both cases followed the original meaning of the Constitution or the applicable statute and did not engage in judicial activism. Indeed, to have ruled otherwise in these cases would have required them to ignore the language of congressional statutes and the original meaning of the First Amendment, and would have caused a further rupture with a long line of precedent. Liberals would have the Court do all these things in the name of their desired policy outcomes -- actions that would meet the actual definition of activism.
Most criticisms of the Citizens United decision are based on policy arguments about the danger of corporations being able to spend their funds on political speech. We don’t agree with those criticisms, but the point is that they are policy arguments, not argument based on a proper interpretation of the applicable law and the Constitution.
A more serious criticism comes from those who claim that the five justices in the majority were engaging in judicial activism because they declared a federal statute unconstitutional and overturned prior precedent, Austin v. Michigan State Chamber of Commerce, which in 1990 upheld a state ban on independent expenditures by a nonprofit trade association, and part of McConnell v. FEC, which in 2003 upheld the “electioneering communications” provision of the McCain-Feingold law (a provision expanding the independent expenditure ban).
However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United were not judicial activism; they upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when judges overturn two relatively recent decisions that were wrongly decided and that conflict with a long line of other precedents, including the seminal case on campaign finance law, Buckley v. Valeo.
This is particularly true when the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson should still be the law of the land today and racial segregation should still be considered “constitutional.” Under their slanted and sophomoric definition, the Supreme Court engaged in judicial “activism” in Brown v. Board of Education in 1954 when it overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional -- and arguably did so when it decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.
In Ledbetter, the Supreme Court held that the time limit for filing a claim with the EEOC under Title VII of the Civil Rights Act was triggered by the actual discriminatory act, not later results that supposedly perpetuated the effects of the earlier discrimination. One critic of the five-member majority’s opinion written by Justice Alito claimed the Court had ruled against a “woman paid less than her male peers for 20 years” because she failed to file her suit “within 180 days of the first instance of discrimination” (a statutory requirement) and even “though she had no way of learning about the discrimination until years later,” a patently false claim under the facts in the case. Another report criticizing the “infamous” and “outrageous” decision of the majority falsely stated that Ledbetter was unaware of the discriminatory treatment and claimed that the majority was “twisting employment and labor law to serve corporate wrongdoers.”
Yet the Ledbetter decision simply followed the prior precedents of the Court. The five justices in the majority weren’t engaging in judicial “activism” to “twist” the law in favor of a corporate defendant. The real hypocrisy in this case was demonstrated by Justice Stevens, a liberal lion celebrated by the Left, who dissented and seems to have completely changed his views of the law from an earlier case in which he ruled in a manner completely contrary to the position he was urging in his dissent in this case.
Many of Ledbetter’s arguments in the case (echoed by critics of the Court) were “policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC.” But those policy arguments were being made to the wrong branch of the federal government. It was Congress, not the Court, which chose a very short deadline for filing employment discrimination claims with the EEOC. Critics who did not like that short deadline apparently wanted the Court to “twist” Title VII to write that deadline out of the statute. Because the majority refused to do so, but instead applied the statute as written, they are supposedly “activist” judges who were defying Congress in favor of a corporate defendant, a completely false claim.
The Ledbetter decision and its legislative aftermath actually demonstrate the best features of our constitutional system and the separation of powers the Framers designed and built into it. The Supreme Court followed stare decisis and its own correct precedents and interpreted Title VII’s statute of limitations as Congress promulgated it. Congress didn’t like the result and, listening to the policy (as opposed to legal) arguments made in this case, changed the law with the Lilly Ledbetter Fair Pay Act of 2009, amending the 180-day statute of limitations for filing a pay discrimination claim.
The facts of both cases, and an examination of the legal analysis applied by the justices in their majority opinions, show there is no merit to any of the liberal claims. It’s obvious that some liberal federal judges are feeling vulnerable to the charge of left-wing activism, which has been properly and correctly leveled against them for refusing to follow the law and imposing their social and ideological views in the courtroom. By ascribing the “activist” label to conservative judges, liberals appear to be attempting to damage the public image of the Supreme Court (and certain justices) and make it easier to slide liberal nominees like Kagan past the Senate and onto the Court.
This is also clearly an attempt to propagate a moral equivalency with liberal judges who are the true activists. It is unfair to the justices on the Court who participated in these decisions. It’s a cynical and derisive tactic that injures the faith and confidence of the public in the judicial system.
Robert Alt is the Deputy Director of the Center for Legal and Judicial Studies at The Heritage Foundation. Look for von Spakovsky and Alt's new paper on The Liberal Mythology of an Activist Supreme Court at heritage.org.
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