Passive Judicial Activism?

In a conventional political debate over judicial behavior, conservatives typically criticize “judicial activists” who make law instead of interpreting it, and liberals typically reply that conservative judges are just as “activist” as liberals, only on different issues.

A recent debate between conservative lawyer Leonard Leo, executive vice president of the Federalist Society and advisor to President Bush on judicial nominations, and Prof. Michael Klarman of the University of Virginia law school followed the conventional script perfectly.

Throughout his presentation, Leo denounced “judicial activism” and maintained that conservative jurists were not similarly motivated by a desire to “make law” instead of interpreting it.

It was this contention that drew disagreement from Professor Klarman, who maintained in his rebuttal to Leo that the ubiquitous “judicial activism” charge used to bludgeon liberal judges was “a canard.”

“Both sides are activists but on a different set of issues,” Klarman maintained.

“If the issue is abortion, if the issue is gay rights, if the issue is school prayer, then you might plausibly, I think, be able to criticize liberal justices for being activists.”

But, he added, “If the issue is affirmative action, if the issue is minority voting districts, if the issue is regulatory takings, if the issue is campaign finance reform, if the issue is federalism or the issue is executive power, then it is the conservatives who are activists.”

First, let me say that I have no quarrel with the observation that conservative judges can be activist, whatever the meaning of “activist” is (and that meaning is notoriously elusive and even shifting), and hence that conservatives can be fairly criticized for their inconsistency regarding judicial activism. But it has now become so common to reply to conventional conservative accusations such as Leo’s with conventional liberal replies such as Klarman’s that I think we need to look a bit closer at that conventional “You’re one, too!” reply.

Now, as I’ve already suggested, the definition of “activism” often varies considerably with the partisan identification of the definer, but when Professor Karman asserts that conservatives are activists when the issue is affirmative action or federalism, I assume he means something like the following:

a) with regard to affirmative action, a conservative judge would be more inclined than a liberal to overturn a legislative provision of racial preferences in hiring, contracting, etc., i.e., would be more inclined to conclude that the colorblind principle that he personally favors happily happens to be enshrined in the 14th Amendment;

b) with regard to federalism, a conservative judge would be more inclined that a liberal to limit federal, especially Congressional, power relative to the states and to recognize greater authority and autonomy in the states.

I would like to suggest that the new conventional wisdom expressed here by Prof. Klarman is as much a “canard” as the conservative inconsistency to which he objects, and I’d like to support this suggestion by asking you to consider Justice Stevens’s opinion in the Bakke case (he concurred in the decision of the Court only insofar as it affirmed the lower court’s ruling that Bakke should be admitted). Here is a revealing and powerfully argued excerpt (footnotes excluded):

Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted.

Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No doubt, when this legislation was being debated, Congress was not directly concerned with the legality of “reverse discrimination” or “affirmative action” programs. Its attention was focused on the problem at hand, the “glaring . . . discrimination against Negroes which exists throughout our Nation,” and, with respect to Title VI, the federal funding of segregated facilities. The genesis of the legislation, however, did not limit the breadth of the solution adopted. Just as Congress responded to the problem of employment discrimination by enacting a provision that protects all races, see McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279, so, too, its answer to the problem of federal funding of segregated facilities stands as a broad prohibition against the exclusion of any individual from a federally funded program “on the ground of race.” In the words of the House Report, Title VI stands for

the general principle that no person . . . be excluded from participation . . . on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance.

H.R.Rep. No. 914, 88th Cong., 1st Sess, pt. l, p. 25 (1963) (emphasis added). This same broad view of Title VI and § 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act.

Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of § 601’s categorical prohibition of “exclusion” is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow “excluded from” do not modify or qualify the explicit outlawing of any exclusion on the stated grounds.

The legislative history reinforces this reading. The only suggestion that § 601 would allow exclusion of nonminority applicants came from opponents of the legislation, and then only by way of a discussion of the meaning of the word “discrimination.” The opponents feared that the term “discrimination” would be read as mandating racial quotas and “racially balanced” colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility. In response, the proponents of the legislation gave repeated assurances that the Act would be “colorblind” in its application. Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows:

[T]he word “discrimination” has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . .

The answer to this question [what was meant by “discrimination”] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else.

110 Cong.Rec. 5864 (1964).

[I]f we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that, we would not need to worry about discrimination.

In short (well, this excerpt isn’t short, but I wanted all of it on the record here), Justice Stevens, joined by Chief Justice Burger, Justice Rehnquist, and Justice Stewart, voted against “affirmative action,” presumably making his opinion conservative, but he did so based on the clear meaning of a federal statute. Thus his opinion voted to uphold, rather than reject, a piece of legislation passed by Congress, and it voted to rein in errant state behavior based on a Congressional mandate, both of these latter two positions being ostensibly and protypically liberal.

Justice Stevens in his later years went on to become a pillar of the liberal wing of the Supreme Court, but for my purpose here it doesn’t really matter whether he was a liberal or a conservative in 1977 when he wrote this opinion. What matters is how one characterizes his Bakke opinion. Was it “conservative” because it rejected an affirmative action program, or was it “liberal” because that rejection was based on upholding, not overturning, a federal statute and hence on federal supremacy when confronted with a conflicting state action? (If Stevens’s opinion is seen as a harbinger of his later liberalism, does that mean that Justice Rehnquist was also an incipient liberal in 1977?)

Finally, I’d like to make one additional criticism of the new conventional (or at least conventionally liberals) view of judicial activism, the view holding that judges are at their most activist when they overturn an act of Congress. I believe this is, at best, half true and that it mistakes one expression of activism for the essence of activism. What is truly activist (whether good or bad is a separate matter) is substituting the Court’s judgment of an issue for the Congress’s and President’s views (since both the latter are necessary to make a law), and that can be done as dramatically by refusing to enforce a law whose text and intent are clear as by declaring it unconstitutional. Perhaps we should call this manner of disregarding the political branches “passive activism,” in the manner of passive aggression.

On this view, the Court has been activist every time it has refused to make policies under review conform to the colorblind “without regard” principle clearly both intended and expressed in the text of the 1964 Civil Rights Act. Justice Powell was the flaming activist in Bakke, not Stevens, Burger, Rehnquist, and Stewart.