Tuesday, July 01, 2008

The limits - and reality - of judicial activism and restraint

There has been another round of commentary on the topic of judicial activism at the close of the Supreme Court's term. I have said that I don't like the term and would prefer another, but the conventions of the dialogue seem to stick us with it.

Nationally, public commentators like E.J. Dionne and Dahlia Lithwick repeat now overworked trope that because conservatives applaud some cases that overrule legislative choices, there is no substance to the concept. We should move on to the policy debate. (And there are policy differences that can't be reduced to "activism" vs. "restraint.")Locally, the idea is repeated here and here. The latter two pain me. Some people just won't accept instruction.

As I and many people smarter than me have tried to explain, the idea that the controversy around activism and restraint can be reduced to deferral to the legislature or executive or to adherence to precedent is an oversimplification. Gerald Bradley, a lawprof at Notre Dame, recently made the point again at Bench Memos:

My tentative (and humble) submission is that "judicial activism" is indeed a useful term, and that its central meaning has to do strictly with the sources of judicial reasoning — whether the grounds (criteria, reasons) for the judicial decision are fairly inferable from the constitutional text, structure, or history of its authoritative interpretation. If not, you have an "activist" at work.

Let's use Heller as an example. The Second Amendment says that " [a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Judges who differ as to whether the prefatory clause "a well regulated militia ..." restricts or, as Scalia argued, merely informs the scope of the operative clause (the right of the people ...) cannot necessarily be characterized as "activist" or "restraintists." If the Constitution creates an individual right to bear arms that the legislature must respect, then it would be "activist", i.e., it would be ignoring what the law requires, to refuse to enforce it.

Thus, one could argue that neither the Scalia majority opinion nor the Stevens dissent are activist. While there are problems with the way that Stevens goes about it, both were after the meaning of the text. Scalia did not ignore the prefatory clause or rewrite the text of the amendment. The question was whether the prefatory clause stated the reason that the right to bear arms was recognized (which, as Scalia carefully explains, helps to define the scope of the right) or does it restrict the right to the context of a militia? Scalia undertook a very careful exegesis of the text and its history in order to find its original public meaning.

On the other hand, Breyer's dissent (in which, to be fair, Stevens joined) adopts a balancing approach to the right to bear arms that essentially allows a judge to do whatever he or she wants. Randy Barnett put it well:

Of course, the originalism of both Justices Scalia's and Stevens's opinions are in stark contrast with Justice Breyer's dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.


illusory tenant said...

Some people just won't accept instruction.

Haha. Don't worry, we still love ya.

Mike Plaisted said...

Speak for yourself, IT.

No, but, seriously...

"Breyer's dissent (in which, to be fair, Stevens joined) adopts a balancing approach to the right to bear arms that essentially allows a judge to do whatever he or she wants."

Oh, Rick, what a load.

As you know, Breyers asks what scrutiny is to be applied to the D.C. law. The hard-right + plus Kennedy, the result desired in sight, can't be bothered with these uncomfortable details. Breyer applies the higher standard "strict scrutiny", exploring along the way, as he must (and as the majority should have), the purpose of the law and whether the law enacted places an impermissable burden on the "right", since not even real constitutional rights like the First Amendment are not absolute.

If they were not so busy rushing to the result, the majority should have conducted a similar "interest-balancing", no doubt reaching a different result. But such a balancing in the infringement of a constitutional right is not "activism", it is necessary scrutiny.

I know you have your hands full these days, Rick, trying to defend WMC against "threats" from independent business voices and all. I'd stick that for a while, rather that accuse Breyer of "activism" that doesn't exist.

Rick Esenberg said...

Breyer applies the higher standard "strict scrutiny"

No, actually he doesn't. He doesn't even claim to, saying at p. 9 of his dissent, that he thinkz a true strict srutiny approah would be impossible when it comes to guns because there is always compelling interest. He decides, instead, to adopt what he calls (on the next page if you are interested), an interest balancing approach. That approach, particularly as he applies it, is completely ad hoc and unguided. We protect no other enumerated liberty rights in this way.

Apart from the fact that he avoids the need to find a compelling interest by deciding to treat all gun regulation as abstract equivalents, his analysis of the fit between ends and means is anything but strict. Look at his argument on p. 32. He says there is no less restrictive means to accomplish the district's purpose because it's purpose is to allow a police officer to assume that every handgun he sees is an illegal gun and the only way to o that is to ban them. How is that scrutiny strict? How is it any limitation at all on a judge's exercise of judicial review? It seems tantamount to saying that the state's interest in banning handguns trumps the constitutional right to have one. That's, for lack of a better word, lawless.

Don't take my word for it. Read the commentary. I'm far from the only one who sees it this way.

illusory tenant said...

What's not clear to me is why you linked to Prof. Siegel's piece at PrawfsBlog.

Was that a commendation for it, or are you mocking it a bit, since it follows on the link to Dahlia Lithwick, who I get the impression you don't much care for.

Terrence Berres said...

Mr. Plaisted's June 28, 2008 post on Heller says, regarding Justice Scalia's majority opinion, "Unable to explain his conclusion that the right to 'keep and bear arms' is an individual rather than a collective right, despite the actual state-militia-facilitating language of the amendment, the Great One (oh, yes he is -- just ask him) simply substitutes his own language for the actual text of the amendment."

Mr. Foley's June 28, 2008 post says
"This week's [Journal Sentinel] 'best blogger' claims that D.C. v. Heller, the U.S. Supreme Court's big gun case, was decided "5-4 in favor of the individual right to bear arms.
"One wonders how a best blogger could make such a rookie mistake..."

Am I reading these correctly to say the two of you disagree on this issue?

Anonymous said...

Actually Heller is a great example of how his "originalism" is a sham whereby he selectively selects snippets of various materials from the time around passage, including magazines, speeches, etc., and Svengali Scalia channels those who have been dead for hundreds of years.

For amusement, contrast his recent dissent in the Gitmo case, a political screed about how giving detainees access to the great Writ will "kill many Americans."

My main regret is that none of the Heller dissenters were clever enough to cite the "the majority is killing us all" reasoning of Scalia's Gitmo dissent.

illusory tenant said...

Mr. Berres,

I've never discussed it with MP, so I can't speak to any disagreement. In any event, that the Amendment is "State-militia-facilitating" doesn't contradict its protecting an individual right to keep and bear arms.

For the record, I don't dispute, and have never disputed, that the Second Amendment embodies a very important and basic right of Americans to keep and bear arms.

As a matter of fact I very much appreciate the efforts of responsible gun owners and I agree with them that their rights shouldn't be curtailed on account of irresponsible ones.

Mike Plaisted said...

I noticed when I saw IT's post on Heller that I might have screwed up the collective/individual right point. From Stevens' dissent:

"When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia."

So, yeah, an individual right for those involved in a collective purpose. My bad.

As for IT's other point in the preceding comment here, I couldn't disagree more. Screw non-sporting hand"gun owners. Their delusions of "self-defense cannot outweigh the heat-of-passion crimes, suicides and accidents, especially involving kids caused by having handguns in the home.

IT should know this. There are few things more comforting than entering Canada and seeing the "Handguns Prohibited" signs. And Canada's crime rate, even in big cities, proves the point.

As for Rick's comment, I'm still waiting to hear about what he thinks about Scalia's hysterical screed about the "danger" and "certain death" to be caused by the habeas Corpus case. Some balancing, eh? How "activist" was Scalia willing to be to ignore the Great Writ?

Again, the Supreme's Right-Wing Four decide the result and then try to work around the law to get there. In their cloistered world, a group of justices can indeed "do whatever he or she wants".

illusory tenant said...

I don't think the U.S. Constitution allows for a distinction between long guns and pistols, especially as the latter have been around since the 16th century.

I'm not a gun person either, but I'd be a hypocrite if I sought to impose my values in that area on other people.

Mike Plaisted said...

IT: Legally, you may be right -- I mean, you ALWAYS are -- but, personally and politically, I say, impose away! Gun nuts are the biggest whiny babies out here in the blogosphere. "...from my cold, dead hands", my ass.

illusory tenant said...

you ALWAYS are

lol - that's one of the benefits of resisting the professor's instruction.

Terrence Berres said...

" '...from my cold, dead hands', my ass."
--Andrew Sullivan

Anonymous said...

Plaisted said,

"Gun nuts are the biggest whiny babies out here in the blogosphere. "

This from the guy who goes out of his way to inform the world how offended he is that the owner of some tiny restaurant dares to wear his conservative politics on his sleeve.