More Judicial Activism
Many progressives are celebrating the Supreme Court's decision to accept certiorari in Lawrence v. Texas, the Texas sodomy case, hoping that the Court will either reverse or narrow its previous holding in the notorious and widely criticized case of Bowers v. Hardwick. Nathan Newman, though, has reservations. He fears that a Supreme Court decision invalidating the Texas anti-sodomy statute, a decision that he says would be judicial activism, would produce a cultural conservative backlash that ultimately would reverse momentum toward gay rights. More generally, he contends that progressives err by relying on antimajoritarian judicial decisions rather than creating legislative majorities. Judicial activism, he concludes, ultimately offers false hope and false solutions.
There's certainly something to Nathan's argument. Judicial decisions that remove controversial issues from the political realm have a clear potential to produce significant resentment among those who favor the invalidated legislation. You don't need to look any further back than the Ninth Circuit's Pledge of Allegiance decision last June, which provoked an immediate popular and legislative backlash. Beyond that, Nathan is correct, I think, to suggest that Roe v. Wade has turned out to be more of a mixed blessing than the pro-choice community probably expected three decades ago.
That said, I have a couple of problems with Nathan's argument. For one, it relies on an exceptionally fuzzy and ill-defined conception of judicial activism. I've written several posts offering alternative formulations of the concept in the past (see here and here, for example), so it's something I've spent some time thinking about, but I'm still not sure exactly what Nathan means. It can't simply be the concept of judicial review of statutory law. That concept is sufficiently well established in our national jurisprudence that it's inappropriate to apply to it a pejorative term like judicial activism. To the criticism that such review is antimajoritarian, the simple answer is that many features of our constitutional system, not simply this one, are antimajoritarian. Madison and most of the other framers had a profound distrust of unchecked majorities, based in part on the experience under the Articles of Confederation during the 1780s.
It may be that Nathan's view of judicial activism involves a substantial component of respect for precedent, the notion being that a decision that charts a new course despite the existence of prior Supreme Court precedent constitutes activism. If so, though, a decision reversing the conviction in Lawrence v. Texas would not, in my view, constitute a particularly alarming instance of activism. Bowers v. Hardwick hardly has a long and distinguished history, after all. It was decided by a vote of 5-4, and one member of the majority subsequently expressed regret over his vote. The decision has been sharply criticized from both the left and the libertarian wing of the right. Overruling it would not remove or reshape one of the pillars of American constitutional law.
(The same could be said, incidentally, of Bakke, the Supreme Court's prior ruling on affirmative action in higher education admissions. The Bakke Court was sharply divided on both result and rationale; the consititutional principles that emerged from the decision are hardly as firmly rooted in American jurisprudence as are, say, those from the unanimous decision in Brown v. Board of Education.)
It's also apparently not simply a matter of invalidating legislation. As far as I've been able to determine, the affirmative action policies at issue in the two University of Michigan cases are not based on any particular act of the Michigan legislature. While the legislature no doubt could adopt legislation that would invalidate the policies as a matter of statutory law rather than constitutional law, a decision invalidating those policies would not tread directly on legislative toes. Yet Nathan suggests that a decision invalidating the affirmative action policies at the University of Michigan would constitute judicial activism as well.
I think that what Nathan means when he refers to judicial activism is achievement through judicial innovation of an end that could not be achieved by legislative means. Such action undoubtedly has antimajoritarian elements and has potential to arouse a popular backlash. But Lawrence isn't necessarily such a case. Many of the state anti-sodomy laws still on the books (whether this applies to the Texas law or not, I don't know) are decades if not centuries old, and society has changed significantly in the meantime. The extent to which the statutes reflect present majority preferences is thus questionable. What's more, even if a majority of voters would favor overturning the statute if the question were put to them, the significant procedural hurdles to passing new legislation mean that the legislative branch is heavily weighted toward maintenance of the status quo. Judicial review of such a statute, then, does not necessarily trample on present majority preferences. This doesn't mean that judges should rush to declare such statutes void as a matter of constitutional law, of course. But where an antiquated statute treads into the gray areas of constitutional doctrine, the antimajoritarian concern is at least lessened.
(Judge Guido Calabresi of the Second Circuit, for whom I clerked, wrote at length before taking the bench about possible ways that judges might deal with obsolete or obsolescent statutes short of affirmance—which would leave the obsolete status quo intact—or reversal on constitutional grounds—which would remove the issue altogether from the political sphere. The argument (and the subsequent academic debate that it provoked) is too involved to reproduce here. For those interested in the subject, though, I highly recommend the book, A Common Law for the Age of Statutes.)
I also think that the circumstances in which a case arises are relevant. Lawrence, for example, is not a declaratory judgment action—it's not brought by people who want to engage prospectively in currently-prohibited action and who choose to pursue a judicial rather than a legislative remedy. The petitioners in Lawrence now have criminal convictions that they would like to see reversed; any new legislation would come too late for them. While gay and lesbian groups are supporting their efforts, the petitioners did not pick this fight; the State of Texas did when it chose to prosecute them. It's unrealistic to expect them to sacrifice their rights, which they reasonably believe have already been violated in a distinct and otherwise-irremediable way, for fear of uncertain future consequences. What's more, as Nathan recognizes, this case involves an equal protection element that Bowers lacked, in that unlike Georgia's now-repealed statute, the Texas statute in question distinguishes homosexual sodomy from heterosexual sodomy and criminalizes only the former. We're not necessarily dealing, in other words, with a direct challenge to a firmly established constitutional principle.
Nathan is right to question whether using litigation to pursue goals that properly belong in the legislative realm causes more harm than good. And judges who set forth particularly bold and unprecedented constitutional doctrines run the risk of damaging the institutional integrity not just of the legislature but also of the judiciary. Ultimately, though, Nathan goes too far in his criticism of the Court's decision to hear Lawrence, not only because he overestimates (in my opinion) the amount of judicial innovation that reversal would require, but also because he underestimates the role that litigation can have in shaping public attitudes. For example, Nathan suggests that Brown v. Board of Education did not constitute improper judicial activism because it was part of a rising civil rights tide, one that could not produce a legislative remedy only because of the procedural peculiarities of the United States Senate. Even if this reading of history is correct, it's important to remember that Brown did not emerge from a legal vacuum; rather, it was the culmination of decades of legal efforts by the NAACP to challenge segregation at different levels of education. Those earlier cases played a vital role in demonstrating, in legal terms, the emptiness of Plessy v. Ferguson's separate-but-equal doctrine. But they also played a role—not a decisive role, perhaps, but a role nonetheless, in changing broader public attitudes toward segregation and civil rights. It's worth remembering that as we contemplate the possible ramifications of the Court's decision to hear Lawrence.
(Sam Heldman also responded to Nathan; his post can be found here.)