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idicial activism
Discussions of judicial activism usually leave the term ill-defined.
But this author identifies six specific elements that give general
structure to the concept.
by Bradley C. Canon
dom address the basic question of
AcTVISM
AND
RESTRAINT (Lexington,
RESTRAINT
Judicature
(1977).
4. Jackson, TitE STrUc,c.LE
Press, 19't3).
5. tnited States v. Caholeie Prods. 30'4 U.S. 144, at
152-53 (1938).
6. See Frankfurter's dissent in west Virginia Bd. of
Edu(c. v. Bau'tte 319 ITS. 624) 19't3): t-and."IiFE B.iioF"
RI.ii'S (Cailridg,, Mass.: Harvard linikersity Press,
1958): MCIdcllso. "TiH SUPREMF COURT: LAW ANt) DisCRE ION (IndiUnapolis, Iln.: Bobbs-Merrill, 1967).
7. Wchh'liei. Toward Neutral Principles of Constitutional Lat, 73 HARV. I. Rv. 1-35 (1959); and i-hnkin,
Some Reflections on Current Constitutional Controversies, 109 I. PA. .. Rvv. 637-662 (1961).
8. Berge% GOVERNMFNT Bv JUDICIARY (Camrhiidge,
Press, 1970).
December-January, 1983
Majoritarianists suggest
that substituting judicial
for legislative policy
is illegitimate
in a democracy.
December-January,1983
Interpretive stability
This dimension measures the degree to which
a Supreme Court decision either retains or
abandons precedent or existing judicial doctrine. Interpretive stability is an important
element in the debate over the merits of activism, although it is often unrecognized as
such and its components are often poorly
articulated. Discussion of the Warren Court's
activism probably focused more on the fre18. 374 tUI.S. 203 (1963).
19. 410 U.S. 113 (1973).
20. 367 t1.S. 643 (1962).
26. West Coast Hotel Co. v.Parrish, 300 I.S. 379, at '100
(1937).
27. 347 UJ.S. '183, at 494-95 (1954). Plessy v. FergLson,
163 1I.S. 537 (1896) was ovetiled.
22
Arizona,2' and New York Times v. Sullivan,
to name a few, nullified no statute or ordinance but simply overturned precedent, common law doctrine, or old understandings
about the Constitution. Moreover, some decisions that voided legislation faced even greater
criticism because they also overruled precedent: Baker v. Carr2 and Brown v. Board of
Education,24 are cases in point. Nor is the
Warren Court the sole exemplar of interpretive instability. The Burger Court is sometimes similarly criticized for its decisions restricting or overturning Warren Court doctrines, for example, National League of Cities
v. Usury.25 And the post-1937 Court was seen
as activist by many for its decisions legitimizing New Deal legislation, which sometimes
overruled or emasculated the doctrines of
freedom of contract, substantive due process,
and dual federalism.
The most visible and dramatic instance of
interpretive instability comes when the Court
explicitly overrules one of its own earlier
decisions. Usually the Court is straightforward about it, for example, "Our conclusion
is that the case of Adkins v. Children'sHospi26
tal, supra, should be, and it is, overruled.'
Occasionally it is indirect, as in the Brown v.
Board phrasing, "any language in Plessy v.
Ferguson contrary to this finding is rejected."2 7 Few failed, however, to appreciate
that Plessy had been overruled.
The Court can also drastically weaken a
precedent without formally overruling it. Of
course, over time we expect that future decisions may put some limits on a precedent's
applicability. The clarification and development of precedent are the woof and warp of
judicial business and such cases hardly constitute activism. But when a precedent is drastically weakened by a single subsequent decision that greatly restricts its scope or seriously
compromises its logic, the ideal of interpretive stability is weakened. For example, Gertz
v. Welch28 significantly altered the concept of
a "public person" as set forth in Rosenbloom
v. Metromedia,9 and the Reidel3 and Twelve
Interpretive fidelity
]
Reels31 cases almost totally undermined th .e
logic and practical utility of Stanley v. Georrgia,3 2 protecting private possession of porn( graphy.
Precedent can be enhanced as well as resstricted. Again, some growth in scope and reaasoning naturally occurs. However, on occaasion the Court will expand precedent by a
virtual quantum leap-by applying it to a
new legal area or giving it hitherto unfor eseen or rejected implications, for exampl e,
3
Frontiero's"
reliance on Boiling v. Sharpe,34
or Collector v. Day35 as a new application c)f
McCulloch v. Maryland 36.
Interpretive stability need not be measure d
against precedent. Another baseline is what I
will call "ongoing interpretation" of th e
Constitution. Ongoing interpretation is a n
inferential interpretation of constitutiona Il
meaning drawn from longstanding and/o ir
widespread laws or practices. No specifi c
Supreme Court precedents directly sUpporrt
such an interpretation, although such sur
port may exist at other levels. For instanc
from 1791 forward virtually everyone assume d
that obscenity was not protected by the Firsst
Amendment and acted accordingly; the asSsumption that tax exemptions for ecclesiast lcally owned property did not violate th e
establishment clause is similarly ancien t.
Only after a century and a half of ongoin g
interpretation did the Court affirm thes e
assumptions. 7 However, the constitutionallity of such practice is not always affirmecI].
Recently the Court has deemed unconstitu
tional some longstanding practices such a 0l
the "spoils system" 38 and state-enforced re
39
strictions on advertising by professionals, t
242
December-January,1983
Specificity of policy
Traditionally, courts stepped into public policy only to nullify laws. Such a decision often
left legislators or administrators free to pursue other approaches to a problem. While
nullification is still common, in recent years
51. 381 U.S. 479 (1965).
52. 413 U.S. 15 (1973).
courts have increasingly become positive policymakers as well. That is, they have begun to
command government agencies to undertake
certain policies, sometimes in minute detail.
In some celebrated cases, courts have virtually
taken over the management of school systems, prisons, and hospitals. Positive policymaking by the judiciary could be the wave
of the future, but it will not arrive without
considerable criticism.
Courts may have the right to nullify unconstitutional policies, critics argue, but they
have no warrant to behave like a legislative or
administrative body. Proponents of positive
policymaking reply that the Constitution
contains commands as well as prohibitions
and that courts are obligated to enforce the
former when other agencies cannot or will
not. I will designate this emergent facet of the
debate on activism the Specificity of Policy
dimension.
The key to activism on this dimension is
positive policymaking by the Court. This
includes those decisions that, in effect, declare
or develop new policy, sometimes with attention to detail, or that specify particular behavior government agencies need to follow in
pursuit of an existing policy. Examples are
not hard to find. Roe v. Wade did more than
strike down state abortion laws; it rewrote
them in chapter and verse. In Miller v. California52 an explicit obscenity code was developed. Mirandadictated to the police what officers must do prior to interrogating a suspect.
Some positive Court decisions possess aspects of negative and/or permissive types of
policy. Common sense and context will have
to be applied to their classification. The abortion case and Miller v. California,for instance,
have a permissive component: states are free
to have no laws whatsoever governing abortion or obscenity. However, few states have
chosen this option and, moreover, the options's existence was not crucial to the Court's
decision in either case. Roe v. Wade also has a
negative component in that it rendered unconstitutional then-existing laws prohibiting or
severely limiting abortions. Had that been all
the Court did, a negative classification would
have been appropriate; however, the Court's
promulgation of its own trimester policy
December-January,1983
VAND.
tional question surrounding the public accommodations issue while Congress was considering the Civil Rights Act of 1964 is an
example of judicial restraint on this
dimension.
Gideon v. Wainwright57 is an example of (a)
but not (b). There was considerable discussion of the merits and logistics of providing
counsel for indigent felony defendants at the
time of the decision and many legislatures
had taken steps to that effect. However, judges
were certainly as knowledgeable as legislators
in making policy so close to their own realm
of experience. Aptheker v. Secretary of State5
illustrates (b) but not (a). Congress and the
State Department certainly knew more about
the national security implications of overseas
travel by members of the Communist Party,
but given the temper of the times, the passport provisions of the McCarren Act were not
likely to be repealed.
Conclusion
Judicial activism is a central, if not well
understood, feature of the American political
system. As such, it has long been subject to
both polemical and scholarly analyses, although sometimes it is not easy to separate
the two. Most such attention, however, has
been ad hoc or at least without a general
approach to the phenomena. Thus, for most
of us, the concept of judicial activism has
little common structure or meaning.
My purpose here has been to give the concept some structure and meaning. I have done
this by developing out of the literature six
distinct dimensions of what has been termed
judicial activism. I have tried to remove or
minimize the ideological components or motivations found in the literature. On my dimensions, judicial activism is a multi-directional
phenomena. It can be liberal or conservative,
libertarian or statist, politically necessary or
unnecessary, or, for that matter, unrelated to
ideology and politics at all. I hope that these
dimensions will prove useful to understanding judicial activism, and that they will
sharpen discussions and analyses of it.
01
BRADLEY C. CANON is a professor of political science
at the University of Kentucky