Bradley Canon - Judicial Activism

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236 Judicature Volume 66, Number 6 December-January, 1983

idicial activism

Discussions of judicial activism usually leave the term ill-defined.But this author identifies six specific elements that give generalstructure to the concept.

by Bradley C. Canon

D iscussions of judicial activism sel-dom address the basic question ofwhat constitutes judicial activismitself. In 1972 a book came out

that illustrated well this point.' The contribu-tors were 18 judges and scholars, includingsuch prominent ones as justices Robert Jack-

Portions of this article are excerpted by permission of thepublisher from the author's work, A Framework for theAnalysis of Judicial Activism, in Halpern and Lamb,SUPREME COURT AcTVISM AND RESTRAINT (Lexington,Mass.: Lexington Books, 1982). Work on this article wassupported by a Minor Grant from Project '87, for which Iam grateful.

1. Forte, ed., THE SUPREME COURT IN AMERICANPOLITICS: JUDICIAL ACTIVISM VS. JUDICIAL RESTRAINT(Lexington, Mass.: D.C. Heath, 1972).

2. Political scientist Glendon Schubert said, "TheCourt isactivist when its decisions conflict with thoseofother political policymakers." Id., at 17.

son and the younger John Marshall Harlan,judges Learned Hand and J. Skelly Wright,and professors Alexander Bickel, Philip Kur-land, and Herbert Wechsler. With one excep-tion, none of the authors even tried to definejudicial activism precisely.2 At best readerscould infer only a general conception of itwithout any framework or boundaries. Mostrecent essays into judicial activism suffer sim-ilarly: the term judicial activism is used with-out clarity. Moreover, even when someonedoes define it, the effort is usually ignored byall other commentators.

Much of the discussion about judicial acti-vism is implicitly ideological, and that is aproblem. Judicial activism is often equatedwith political liberalism, and restraint withconservatism. The Warren Court is widely

equated with 0both activist jurisprudence andliberal results. The critics who have called forrestraints on the federal courts have almostalways been conservatives. But it was notalways this way.

Classic discussion of activism focused onthe nullification of liberal legislation by con-servative justices, oron the invention or con-tortion of common law principles to protectwealth from severe damagejudgments. In theconstitutional crisis of 1936-1937, it was theNew Deal liberals who argued for judicialrestraint and the Old Guard conservativeswho championed the role of the federal courtsin shaping public policy. Today the ideologi-cal shift may be coming full circle. Currentlysome liberals accuse the Burger Court of acti-vism by bltnting or dismantling many of theholdings of the Warren Court.3 Laissez-fairecritics of the post-1937 Court engaged inessentially the same shift.

More importantly, however, many commen-tators have considerably different concernswhen they discuss judicial activism, concernsthat often reflect whatever the courts aredoing at the time. Thus in the New Deal eraAttorney General (and later Justice) RobertJackson and historian Henry Steele Com-mager focused on the judicial usurption ofmajority rule in their analysis of activism.' Asimilar but narrower focus prevailed in the1940s and 1950s as the Supreme Court fol-lowed the "preferred position" doctrine(broad construction of the First and Four-teenth amendments) in the wake of JusticeHarlan E Stone's famous Carolene Productsfootnote.' justice Felix Frankfurte, judgeLearned Hand, and scholar Wallace Mendel-son aimed their criticisms at this so-called"libertarian activism."6

When the Warren Court began overrulinglongstanding legal doctrines or importantprecedents, criticism of activism shifted again.The courts' unwillingness to maintain con-tinuity, precedent, or "neutral principles"was criticized. 7 Similarly, contemporary crit-ics such as Raoul Berger, echoed by JusticeWilliam Rehnquist and in his own way bythe late Justice Hugo Black, have reacted tothe Supreme Court's expanded substantiveinterpretation of such constitutional provi-

sions as the First and Fourteenth Amendmentby equating activism with the Court's failureto abide by the words of these provisions orthe intentions of their drafters. 8

Also in recent years scholars such as DonaldHorowitz and Nathan Glazer have challengedthe courts' initiation of complicated andoften far-reaching policy changes, whichsometimes involve the virtual day-to-daysupervision of school systems, prisons, hospi-tals, and other institutions.9 Their version ofactivism exists when courts act beyond theircapacities and expertise. Finally, some decrythe courts politicization. Legal scholars suchas Bickel and Kurland argue in terms of bothcomity and capacity that the courts shouldrefrain from resolvingdisputes in those issuesareas where the other branches of governmenthave the authority and ability to do so."0

Two factors undergird this variety of ap-proaches. First, judicial activism is often seenas a significant court-generated change inpublic policy. The court is literally active inpublic policy. When a court strikes down lawsor overrules precedents or institutes cross-town busing or prison reforms, it by defini-

3. Goldman, In Defense of Justice, 29 J. POL. 148-158(1977).

4. Jackson, TitE STrUc,c.LE FOR JUDICIAL SUPREMACY(New York: Knopf. 1941); Commager, MAJORITY Rut.FAND MINORI Iy Rmtriis (New York: Oxfoid UniversityPress, 19't3).

5. tnited States v. Caholeie Prods. 30'4 U.S. 144, at152-53 (1938).

6. See Frankfurter's dissent in west Virginia Bd. ofEdu(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) Dis-CRE ION (IndiUnapolis, Iln.: Bobbs-Merrill, 1967).

7. Wchh'liei. Toward Neutral Principles of Constitu-tional Lat, 73 HARV. I. Rv. 1-35 (1959); and i-hnkin,Some Reflections on Current Constitutional Controver-sies, 109 I. PA. .. Rvv. 637-662 (1961).

8. Berge% GOVERNMFNT Bv JUDICIARY (Camrhiidge,Mass.: Harvard Univet'sity Piess., 1977); Rehnquisi. TheNotion of a Living Constitution, 5'lTEx., REV. 693-709(1976). See Itistic Bl ack's dissent in Kaizv v. Inited Staies.389 1I.S. 347 (1967).

9. Horowitz, THE COURTS AND SOCIAL POtLIcY (Wash-ington, D.C.: The Brookings Inslitutte, 1977); Glazer,Should Judges Administer Social Services, 50 PUeI NTrns'i 64-80 (1979).

10. Bit'kcl, THE SUPREME COURT AND Tiit IDEA OFPROGRESS (New 'York: tHtarpetr - Row, 1970), and TiEMORAITY OF CONSENT (New H-lavei: Yah' UniversitPress, 1975); Kurland. POt.ITICS, TH CONSTITUTION ANDTE WARREN COURT (Chicago: University of ChicagoPress, 1970).


tion changes public policy. The second factoris illegitimacy. An activist decision is oneperceived as illegitimate in terms of one ormore commonly articulated beliefs about the,roper role of thejudiciary, and especially the

Supreme Court, in the American constitu-tional system.

If commentators have numerous and dis-parate concepts of activism and do not articu-late them very well, serious general use of theterm becomes difficult if not meaningless.Overall, we receive little more than a babel ofloosely connected discussion; the utility ofany particular idea is limited. Those wantingto understand the discussion are left prettymuch to their own devices.

I will not presume to propose a definitivemeaning of judicial activism. I doubt that Icould fashion one that would include in ameaningful way all of the focuses notedabove. What I will do is try to give somegeneral structure to the concept. I have identi-fied and elaborated on six separate dimen-sions of judicial activism. These dimensionscorrespond roughly with the focuses notedabove. I have derived them from a review ofboth the polemical and evaluative literaturepertaining to judicial activism, includingsome literature that does not use the termitself, but in which the underlying factors ofpolicy change or illegitimate authority areclearly evident."

Six dimensions of activismThe six dimensions are described very brieflyhere and will be spelled out in detail below.

(1) Majoritarianism-the degree to whichpolicies adopted through democratic pro-cesses are judicially negated.

(2) Interpretive Stability-the degree towhich earlier court decisions, doctrines, orinterpretations are altered.

(3) Interpretive Fidelity-the degree towhich constitutional provisions are inter-preted contrary to the clear intentions of theirdrafters or the clear implications of the lan-guage used.

(4) Substance/Democratic Process Distinc-tion-the degree to which judicial decisions

II. Supra n. 6-10.

Disparate and poorlyarticulated concepts ofactivism make serious

use of the term difficultif not meaningless.

make substantive policy rather than affect thepreservation of democratic political processes.

(5) Specificity of Policy-the degree towhich a judicial decision establishes policyitself as opposed to leaving discretion to otheragencies or individuals.

(6) Availability of an Alternate Policymaker-the degree to which a judicial decisionsupersedes serious consideration of the sameproblem by other governmental agencies.

In developing these dimensions I tried toimpose some objective boundaries so thatparticular cases can be described as eitheractivist or non-activist under each dimen-sion's criteria. Obviously, there are limits tothis in practice. Not everyone will agree withall my illustrative classifications. The impor-tant thing, I think, is not to agree completelyon how every case should be classified, but toagree on the essential nature of the approachesto activism.

Also, I have made no effort to control forwhat might be called the intensity of activismon any of these dimensions. For example, adecision wiping out laws prohibiting abor-tion throughout the nation will generatemore frequent and intense discussion thanwill one striking down a law in one state that

mandates license plate mottos. But both areequally activist in the sense that they overturnpolicies adopted by legislative majorities. Ihave made no formal attempt to differentiatethem. 12

A word of caution here. More often thannot, activism is a pejorative term. The normin our system is that courts do not make pol-icy, but rather that they merely implementpolicies inherent in the Constitution and sta-tutes. We all realize that strict adherence tothis norm is virtually impossible, but thenorm's existence itself makes the concept ofjudicial activism suspect. Thus, only a fewjudges, such as Skelly Wright, admit to beingactivists. 3 From Justice Owen Roberts toJudge Frank Johnson, most simply insistthey are applying a clear constitutional man-date to the situation at hand. 4 Legal scholarsare much more open about the existence ofactivism. For many of them, however, activistdecisions are an inviting target for criticalanalysis. Articles supportive of admittedlyactivist decisions usually take on a defensiveor even apologetic tone. In this essay, how-ever, I do not treat activism as a pathology. Ineither condemn nor defend it. It is simply afact of judicial life.

I limit the ensuing discussion of the sixdimensions to the activism of the U.S. Su-preme Court in its development of constitu-tional law. While the concept of activism cer-tainly applies to the construction of statutes,the development of common law, and otherjudicial doctrines, constitutional law lies atthe heart of the controversy and produces thesharpest and most memorable colloquy.

MajoritarianismMajoritarianism is probably the most fre-quent criterion used in assessing SupremeCourt activism. It suggests that when theCourt exercises judicial review, it substitutesanother public policy for that enacted byelected representatives in Congress, state legis-latures, or city councils. Such action is oftenseen as illegitimate from the perspective ofdemocratic theory.

The violation of majoritarianism is mostpronounced when the Court declares an act ofCongress unconstitutional. Elected from

Majoritarianists suggestthat substituting judicial

for legislative policyis illegitimate

in a democracy.

throughout the nation, Congress constitutesa coordinate branch of the federal govern-ment. The justices have voided congressionallegislation an average of once a year since theCivil War, with the average approachingtwice a year in the last two decades. Some suchdecisions strike down provisions having onlylocal application or ones of little real impor-tance, but numerous major congressionalpolicies have also been voided. Dred Scott 5and the several decisions striking down NewDeal policies in the 1930s provoked constitu-tional crises of the first magnitude. Threejudicial overrulings generated amendmentsto the Constitution. 6 Two others induced aserious attempt to write an overruling amend-ment into the Constitution. 7 Beyond these

12. 1 do differentiate levels of activism in a longerwork, A Framework for the Analysis of Judicial Acti-vism, in Halpern and lIam, eds., SUPREME COURT ACTI-VISM AND RESTRAINT 385-419 (Lexington, Mass.: Lexing-ton Books, 1982).

13. Wright, The Role of the Supreme Court in aDemocratic Society-J udicial Activism or Restraint, 54CORNELL L. REV. 1-28 (1968).

14. See Justice Rolerts' famous "squaring" statementin United States v. Butler, 297 U.S. 1, at 62-63 (1936).Johnson, The Role of theJudiciary With Respect to theOther Branches of Government, in Murphy and Prir-cherr, eds., CoURrs, JUDGES AND POLITCS, 3rd ed., 66-71(New York: Random House, 1979).

15. Dred Scott v. Sanford, 19 How. 393 (1857).16. Dred Scott was repudiated by the Fourteenrh

Amendment: Pollock v. Farmers' Loan and Trust Co.,157 U.S. 429 (1895), was overturned by the SixteenthAmendment; and Oregon v. Mitchell, 400 U.S. 112(1970),led to the Twenty-sixth Amendment, setting the min-imum voting age at 18.

17. Hammer v. Dagenhart, 247 U.S. 251 (1918), andBailey v. Drexel Furniture Co., 259 U.S. 20 (1922), ledCongress to pass the Child Labor Amendment in 1924,but it was never ratified by three-fourths of the states.


cases, it is easy to point to a number of othersthat have voided acts of Congress and whichsubsequently received widespread public andscholarly criticism.

The majoritarian dimension also includesSupreme Court nullification of state laws,state constitutional provisions, and local ord-inances. Such voidings arguably are less offen-sive in principle. A federal system requiressome mechanism for reviewing local legisla-tion in order to retain federal supremacy inspecified areas. The U.S. judiciary does this,and it is too late in the game to rethink thatselection. Nonetheless, the nullification oflocal laws arguably violates our commitmentsto majority rule and federalism, especiallywhen the laws involved are not patentlyunconstitutional. Further, striking downsome state laws can have a profound nationalimpact. Criticism following Abington Town-ship v. Schempp, on school prayer,'8 or Roe v.Wade 9 has far exceeded that from any recentnullification of any federal law and has gen-erated strong and continuing efforts to amendthe Constitution.

Interpretive stabilityThis dimension measures the degree to whicha Supreme Court decision either retains orabandons precedent or existing judicial doc-trine. Interpretive stability is an importantelement in the debate over the merits of acti-vism, although it is often unrecognized assuch and its components are often poorlyarticulated. Discussion of the Warren Court'sactivism probably focused more on the fre-

18. 374 tUI.S. 203 (1963).19. 410 U.S. 113 (1973).20. 367 t1.S. 643 (1962).21. 38,l I.S. 436 (1966).22. 376 U.S. 254 (1964).23. 369 U.S. 186 (1962).24. 347 U.S. '183 (1954).25. 426 t.S. 833 (1976). Usury alsoovertutned congres-

sional Iegislation, a 1974 ainendmeni to the Fair LaborStandards Act extending the minimum wage to stat candnicipal nlployees.

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.

28. 418 U.S. 323 (197'4).29. 403 U.S. 29 (1971).30. United States v. Reidel, 402 U.S. 351 (1971).

quency and scope of its radical alterations ofprior jurisprudence than on the anti-majori-tarian nature of its decisions. Many of its mostmemorable cases, Mapp v. Ohio,20 Miranda v.Arizona,2' and New York Times v. Sullivan,22

to name a few, nullified no statute or ordi-nance but simply overturned precedent, com-mon law doctrine, or old understandingsabout the Constitution. Moreover, some deci-sions that voided legislation faced even greatercriticism because they also overruled prece-dent: Baker v. Carr2 and Brown v. Board ofEducation,24 are cases in point. Nor is theWarren Court the sole exemplar of interpre-tive instability. The Burger Court is some-times similarly criticized for its decisions re-stricting or overturning Warren Court doc-trines, for example, National League of Citiesv. Usury.25 And the post-1937 Court was seenas activist by many for its decisions legitimiz-ing New Deal legislation, which sometimesoverruled or emasculated the doctrines offreedom of contract, substantive due process,and dual federalism.

The most visible and dramatic instance ofinterpretive instability comes when the Courtexplicitly overrules one of its own earlierdecisions. Usually the Court is straightfor-ward about it, for example, "Our conclusionis that the case of Adkins v. Children's Hospi-tal, supra, should be, and it is, overruled.' 26

Occasionally it is indirect, as in the Brown v.Board phrasing, "any language in Plessy v.Ferguson contrary to this finding is re-jected."2 7 Few failed, however, to appreciatethat Plessy had been overruled.

The Court can also drastically weaken aprecedent without formally overruling it. Ofcourse, over time we expect that future deci-sions may put some limits on a precedent'sapplicability. The clarification and develop-ment of precedent are the woof and warp ofjudicial business and such cases hardly con-stitute activism. But when a precedent is dras-tically weakened by a single subsequent deci-sion that greatly restricts its scope or seriouslycompromises its logic, the ideal of interpre-tive stability is weakened. For example, Gertzv. Welch28 significantly altered the concept ofa "public person" as set forth in Rosenbloomv. Metromedia,9 and the Reidel3 and Twelve

Can the Courtmisconstrue the

Constitution? Can thePope espouse heresy?

Reels31 cases almost totally undermined thlogic and practical utility of Stanley v. Georgia,3 2 protecting private possession of porn(graphy.

Precedent can be enhanced as well as restricted. Again, some growth in scope and reasoning naturally occurs. However, on occasion the Court will expand precedent byvirtual quantum leap-by applying it tonew legal area or giving it hitherto unforseen or rejected implications, for examplFrontiero's"3 reliance on Boiling v. Sharpe,or Collector v. Day35 as a new application cMcCulloch v. Maryland 36.

Interpretive stability need not be measureagainst precedent. Another baseline is whatwill call "ongoing interpretation" of thConstitution. Ongoing interpretation is ainferential interpretation of constitutionameaning drawn from longstanding and/owidespread laws or practices. No specifiSupreme Court precedents directly sUpporsuch an interpretation, although such surport may exist at other levels. For instancfrom 1791 forward virtually everyone assumethat obscenity was not protected by the FirsAmendment and acted accordingly; the assumption that tax exemptions for ecclesiastcally owned property did not violate thestablishment clause is similarly ancienOnly after a century and a half of ongoininterpretation did the Court affirm thesassumptions. 7 However, the constitutionality of such practice is not always affirmecRecently the Court has deemed unconstitutional some longstanding practices such athe "spoils system" 38 and state-enforced restrictions on advertising by professionals,39 t

7 say nothing of its decisions in AbingtonTownship v. Schempp, concerning schoolprayer, and Roe v. Wade.

Interpretive fidelityThis dimension measures the Court's actualor inferential construction of provisions ofthe Constitution. Activism occurs when aninterpretation does not accord with the ordi-nary meaning of wording of the provisionand/or with the known, consensual inten-tions or goals of its drafters.

] If the Supreme Court has primary respon-.e sibility for interpreting the Constitution'sr- provisions, how then, we might wonder, can- the Court misconstrue that document? It is

analogous to asking whether the Pope cans- espouse heresy. This is not the place for aa- lengthy discussion of the rights and wrongsa- of Supreme Court discretion in interpretinga constitutional provisions. But it is the placea to note that there are j udges and scholars whoe- to a greater or lesser degree believe it is possi-e, ble to measure the interpretive fidelity of34 some Court decisions.4 0 Words and phrases,)f after all, do have some meaning, and drafters

of constitutional provisions did have inten-d tions and goals. When these appear to beI transgressed, dissenting justices and legale scholars often protest vigorously and engagen in considerable semantic analysis or histori-Il cal research. Sometimes the issue is hard toir resolve, but sometimes interpretive hindsightc condemns "interpretive infidelity," as in thert cases where the Court upheld the constitu-

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31. United States v. Twelve 200-Foot Reels, 413 U.S.123 (1973).

32. 394 I.S. 557 (1969).33. Frontiero v. Richardson, 411 U.S. 677 (1973).34. 347 U.S. 497 (1954).35. 11 Wall. 113 (1871).36. '4 Wheat. 316 (1819).37. Roth v, U.S., 354 U.S. 476 (1957), and Walz v. Tax

Conm'n, 397 U.S. 664 (1970), respectively.38. Ehod v. Burns, 427 U.S. 347 (1976).39. Bates v. Siate Bar of Ariz., 433 U.S. 350 (1977).40. Berger, supra n. 8, is the classic e'xample of such a

scholar. 'Justice Black is the classic example of such ajudge. See, for example, his dissents in Barenhlatt v.United States, 360 U.S. 109 (1959), and Smith v. Califor-nia, 361 U.S. 147 (1959). More generally, see John HartEly's discussion of this philosophy, which he calls"inttrpretivism," in DEMOCRACY AND DISTRUST: A TitE-ORY OF JUDICIAi. RFvivw, chs. I, 2 (Cambridge, Mass.:Harvard University Press, 1980).


tionality of relocating Japanese Americansduring World War II, an action now almostuniversally acknowledged to have violatedtheir constitutional rights.4"

While conceding the necessity for discre-tion in applying vague phrases to particularsituations, critics of activism on this dimen-sion argue that the Constitution is not a con-stitution if it can be significantly altered atthe will of nine or five justices in the course ofa lawsuit. Although it is a "Constitutionintended to endure for ages to come,"2 it doesnot follow that the Court can ignore the verywords of the document. Article V provides anamending process if particular provisionsprove unpopular or dysfunctional.

Supporters of activism here argue that theCourt's main function is the smooth applica-tion of an Eighteenth Century document toTwentieth Century problems, which may re-quire new meanings for old provisions. It isthe spirit of the document, they argue, ratherthan the exact wording or the framers' time-bound intentions that is important. At anyrate, interpretive fidelity is clearly a dimen-sion of judicial activism and warrants dis-cussion in any overall treatment of thephenomena.

Let me discuss the two considerations sepa-rately. With regard to wording, I think it isfair to call activist any decision that appearsto clearly contradict any constitutional provi-sion in terms of the ordinary meaning of itswording, or any decision that is contrary tothe logical implications of two or more provi-sions considered together. The Minnesota

41. Hirabayashi v. United States, 320 U.S. 81 (1943),and Korematsu v. United States, 323 U.S. 214 (1944).

42. McCulloch v. Maryland, 4 Wheat. 316, at 408, 415(1819).

43. Home Bldg. and Loan Ass'n v. Blaisdell, 290 U.S.3908 (1934).

44. Harper v. Virginia Bd. of Elections, 383 U.S. 663(1966).

45. Bolling v. Sharpe, 347 U.S. 497 (1954); Frontiero v.Richardson, supra n. 33.

46. Santa Clara County v. Southern Pacific R. Co., 118U.S. 394 (1886). At the beginning of the case, Chief Jus-tice Waite announced that the Court did not wish to hearargument on the question as all justices were of theopinion that the Fourteenth Amendment applied tocorporations.

47. The first such case is Everson v. Board of Educ. ofEwing Township, 330 U.S. 1 (1947).

moratorium case4 3 is illustrative. The Courtupheld a state law impairing contracts des-pite the explicit prohibition against such leg-islation found in Article I, Section 10.

The Harper44 decision, which declared statepoll taxes unconstitutional, provides a morecomplex example. The Twenty-fourthAmendment, adopted two years earlier,banned poll taxes in federal elections but saidnothing about poll taxes in state elections. Itis unclear why the latter were omitted. Per-haps Congress would not pass or the stateswould not ratify an amendment barring polltaxes in state elections. Perhaps it was a mat-ter of strategy, with the elimination of polltaxes in federal elections helping to eliminatethem in state elections. Nonetheless, theCourt, although it did not discuss the Twenty-fourth Amendment in deciding Harper,amended the Constitution in a manner thatCongress and the states had refrained fromjust two years earlier.

Also activist are those decisions that effec-tively create new constitutional provisions byfinding them, through a strained or illogicalinterpretation of language, in pre-existingprovisions. A prime example is creation ofthe "equal protection component" of theFifth Amendment.45 It is difficult to derivesuch an interpretation from an ordinary read-ing of the words "nor shall any person.. bedeprived of life, liberty or property withoutthe due process of law." Moreover, if thewords had been historically understood toconvey such a meaning, the equal protectionclause of the Fourteenth Amendment wouldhave been unnecessary as that amendmentalready contained a due process clause.

Constitutional history contains other im-portant "additions." For instance, the methodby which the Court extended the FourteenthAmendment's due process clause from per-sons to corporations is perhaps well knownbut hardly well reasoned.46 And the transfor-mation of the same clause to constrain state"establishment" of religion-for example,aid to parochial schools-is neither wellknown nor well understood.4 7

As an aside, it is interesting to note thatmany such "amendments" generate little con-troversy. Apparently these actions "go with

the flow." It would be anomalous to forbidstates from engaging in racial discrimination,but to have the federal government doing so.Corporations were the obvious progenitors ofeconomic progress in the late Nineteenth Cen-tury and the contract clause did not providesufficient protection against potentially dev-astating government regulation. In sum, manyCourt "amendments" are welcome ones, butthey are no less activist for that.

I also categorize as activist those decisionsinterpreting a provision contrary to the rea-sonably clear and consensual intentions of itswriters. It is also fair to place in this categorythose decisions applying a provision to asituation existing at the time of the provi-sion's adoption to which it is clear the draftersdid not intend for it to apply. Decisions flyingin the face of the framers' intentions areinfrequent, but do occur. Again the Minne-sota moratorium case comes to mind. Theclear purpose of the contract clause was to'prevent states from altering repayment sche-dules, as some had done in the hard times ofthe 1780s. Yet this was exactly what the Min-nesota law did and the Court upheld it.

Decisions applying constitutional provi-sions to situations where the drafters did notanticipate application are more common.The Founding Fathers, for instance, wouldhave been (and a few were) quite surprised tolearn that the contract clause forbade statesfrom altering the terms of corporate chartersthey granted, as Dartmouth College v. Wood-ward48 held. Anti-abortion laws were preval-ent when the Fourteenth Amendment wasadopted, but no one suggested that the dueprocess clause would render them unconsti-tutional.

It should be emphasized that because ofinadequate discussion, poor records or con-flict in the evidence, it is by no means alwayseasy to ascertain the intentions of the framers.In such cases, the justices cannot be faultedfor adopting an intrepretation for whichthere is a reasonable evidentiary basis. Indeed,in cases such as the desegregation decisionwhere historical evidence concerning inten-tions can be adduced to support both sides ofthe coin (not necessarily in equal propor-tions), the Court would be damned to acti-

vism no matter which way it decided. Theessence of the drafters' intentions criterion isthat the intentions have substantial clarity.

Substance/democratic process distinctionIt is often argued that there is greater justifica-tion in some areas for court policymakingthan in others. In footnote four of the Caro-lene Products case Justice Stone offered theclassic identification of those preferred areas:"legislation which restricts those politicalprocesses which can ordinarily be expected tobring about repeal of undesireable legisla-tion" and "[legislation] which tends seriouslyto curtail the operation of those political pro-cesses ordinarily to be relied upon to protect[discrete and insular minorities]."49

In the wake of this famous footnote, theCourt for about a decade followed the "pre-ferred position" doctrine, which subjectedlaws impinging on the political process togreater judicial scrutiny. While the Court hassince abandoned "preferred position" as for-mal doctrine, it still uses reasoning and rhe-toric reminiscent of it, and many civil liber-tarians continue to harken to it as a rationalefor heightened judicial scrutiny in the area oftheir primary interest.5" Not all agree, ofcourse; many see little distinction betweenCourt policymaking concerning freedom ofexpression and that affecting more substan-tive policy areas. It is this dispute that rendersthe substance/process distinction an impor-tant element in a discussion of activism.Thus, the footnote four philosophy serves asthe genesis of the substance/democratic pro-cess distinction.

The crucial distinction is between thoseCourt decisions relating to the integrity of thedemocratic political processes and those thatdo not affect them. It is a fundamental tenet ofour constitutional system that political mi-norities have an opportunity through open

48. Dartmouth College v. Woodward, 4 Wheat. 518(1819).

49. Supra n. 5.50. Recently John Hart Ely and Jesse Choper have

advanced this basic position in sophisticated book-length arguments. Ely, supra n. 40, and Choper, JUDICIALREVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNC-TIONAL RECONSIDERATION OF THE ROLE OF THE SUPREMECOURT (Chicago: University of Chicago Press. 1980).


communication and democratic political pro-cesses to become a majority. Court decisionsprotecting or enhancing this tenet can beaccounted as more justified than decisionsaffecting other types of public policy.

According to this logic, decisions develop-ing or altering policies affecting the politicalprocesses are not activist. Basically, theseinvolve freedom of expression, the franchise,conduct of elections, and the nature of repres-entation. Such decisions do not directly affectsubstantive policies. Rather they relate to citi-zens' opportunities for input into the poli-cymaking system. The high Court has mademany such decisions upholding, widening,and equalizing these opportunities in thepast half century.

Activist decisions on this dimension arethose which make economic policy, regulatethe non-political-process activities of institu-tions or groups, or impinge people's careers,lifestyles, morals, or religious values. Obvi-ously the scope of this category is broad. Itincludes the "substantive due process" deci-sions so common to the first 40 years of thiscentury as well as the "new due process" com-ing in the wake of the Griswold v. Connecti-cut5 birth control decision. (Note, however,that I am not defining as activist those deci-sions which uphold legislation regulatingthe economy, lifestyles, etc. Only when theCourt negates other agencies' policies ormakes such policy itself is it being activist.)

Brown v. Board and many subsequent de-segregation decisions (but not those involv-ing the right to vote or the legality of sit-ins orother forms of protest) occupy something of amiddle ground on this dimension. Blacksclearly constitute a "discrete and insularminority." However, many race related deci-sions also have substantive aspects in thatthey directly affect people's lifestyles or values.

Specificity of policyTraditionally, courts stepped into public pol-icy only to nullify laws. Such a decision oftenleft legislators or administrators free to pur-sue other approaches to a problem. Whilenullification is still common, in recent years

51. 381 U.S. 479 (1965).52. 413 U.S. 15 (1973).

courts have increasingly become positive pol-icymakers as well. That is, they have begun tocommand government agencies to undertakecertain policies, sometimes in minute detail.In some celebrated cases, courts have virtuallytaken over the management of school sys-tems, prisons, and hospitals. Positive poli-cymaking by the judiciary could be the waveof the future, but it will not arrive withoutconsiderable criticism.

Courts may have the right to nullify uncon-stitutional policies, critics argue, but theyhave no warrant to behave like a legislative oradministrative body. Proponents of positivepolicymaking reply that the Constitutioncontains commands as well as prohibitionsand that courts are obligated to enforce theformer when other agencies cannot or willnot. I will designate this emergent facet of thedebate on activism the Specificity of Policydimension.

The key to activism on this dimension ispositive policymaking by the Court. Thisincludes those decisions that, in effect, declareor develop new policy, sometimes with atten-tion to detail, or that specify particular behav-ior government agencies need to follow inpursuit of an existing policy. Examples arenot hard to find. Roe v. Wade did more thanstrike down state abortion laws; it rewrotethem in chapter and verse. In Miller v. Cali-fornia52 an explicit obscenity code was devel-oped. Miranda dictated to the police what offi-cers must do prior to interrogating a suspect.

Some positive Court decisions possess as-pects of negative and/or permissive types ofpolicy. Common sense and context will haveto be applied to their classification. The abor-tion case and Miller v. California, for instance,have a permissive component: states are freeto have no laws whatsoever governing abor-tion or obscenity. However, few states havechosen this option and, moreover, the opti-ons's existence was not crucial to the Court'sdecision in either case. Roe v. Wade also has anegative component in that it rendered uncon-stitutional then-existing laws prohibiting orseverely limiting abortions. Had that been allthe Court did, a negative classification wouldhave been appropriate; however, the Court'spromulgation of its own trimester policy

warrants a positive classification for the case.

Availability of an alternate policymaker"Courts," Justice Stone noted in 1936, "arenot the only agency of government that mustbe presumed to have the capacity to gov-ern." 53 That is a frequently echoed theme: theSupreme Court must exercise self-restraint inthe face of other agencies' attempts to developpolicies for pressing problems. Such protestusually takes into account how well courtsare equipped vis-a-vis a legislature or an ad-ministrative agency to make intelligent pol-icy in any given area.

Thus the final dimension pertains to whatI will call the Availability of an AlternativePolicymaker.54 The central question here is:to what extent could another agency makepolicy similar to that found in the Court'sdecision? Two factors shape the answer: First,does another agency have the authority tomake policy and, if so, is it politically orpractically feasible for it to do so? Second,does another agency have more expertise andaccess to information to make policy than theSupreme Court?

Sometimes Court decisions or ongoinginterpretation will leave a potential alternatepolicymaker uncertain of its legal authority.In the era of substantive due process and dualfederalism, Congress was often inhibited inits regulation of labor conditions around thenation. Similarly, even integrationists mis-trusted Congress' authority to desegregateschools before 1954 because the Court's Plessydecision had explicitly upheld the constitu-tionality of separate facilities. More often,however, lack of authority is not the inhibit-ing factor. Legislatures have always had theauthority to pass laws prohibiting prayers inschools, require busing for the achievementof racial balance in schools or even mandateMiranda-like warnings before the interroga-tion of suspects. The crucial question is usu-ally the political or practical likelihood ofanother agency taking such action.

The phrase "political or practical likeli-hood" of action does not mean that the alter-nate policymaker necessarily has to arrive atthe same policy as that embodied in theCourt's decision. This would imply the inev-

itability or absolute correctness of the policy,in which case it would make little differencewho promulgated it. Policymaking is a mat-ter of choice. But it is to some extent a rea-soned and genuine choice-one where two ormore policies (one encompassing the Court'sdecision) are possible or probable outcomesof debate and political pressure. In short,there does have to be a reasonable likelihoodthat an alternate policymaker could havecome to the Court's position.

Quite often this is not the case. Occasion-ally, the decisional structure effectively pre-cludes such a choice. It would be quixotic toexpect rurally dominated legislatures in ur-ban states to reapportion themselves alongthe one-man-one-vote line commanded bythe Court. More often, intense political pres-sures make any real consideration of alterna-tive policies unlikely. The word "intense"here is intended to delineate a situation goingbeyond mere majority opposition to theCourt's policy. It implies a communal div-isiveness or a strong antipathy toward minor-ity political, religious, or cultural positions.During the 1950s, for example, no one wouldhave expected Southern legislatures to enactdesegregation laws and few legislative bodiesof any region or level could resist proposedanti-communist laws.

Judges can lay claim to no particularexpertise in substantive policy areas. Fewhave acquired any specialized knowledgethrough prior legislative concentration oradministrative service, and judicial docketsare always broad in scope. More important,judges lack a specialized staff for in-depthresearch on the non-legal aspects of the issuesposed in many cases. By comparison to otheragencies, courts have virtually no staff at all.

Moreover, the information processing sys-tem accompanying judicial decisionmakingis not generally conducive to informed poli-cymaking. The case can stem from a particu-lar event or situation that may or may not

53. United States v. Butler, 297 U.S. 1, at 87 (1936)(dissenting opinion).

54. I have borrowed the term from Carter, WhenCourts Should Make Policy: An lnsfitutional Approach,in Gardiner, ed., PUBuIc LAW AND PUBLIC POLICY (NewYork: Praeget, 1977).


represent the policy dilemma generally. Briefsand oral arguments are developed by lawyersschooled in and encouraged to stress prece-dent and analogy rather than facts illuminat-ing the social consequences of alternate pol-icy choices. While social science data areoccasionally included in briefs or opinions,more often lawyers and judges give little sys-tematic attention to a decision's impact.55

Not all judicial decisions, however, call forexpertise or complex data. Sometimes the in-formation needed is simple and the crucialquestion is one of values. Judges are as compe-tent as anyone else to make such choices. Sta-tistical analyses might inform the details of areapportionment decision, but they are ir-relevant to the fundamental philosophical is-sue. Impact analyses would do little to en-lighten a decision about the constitutionalwisdom of prayers in the public schools. In-deed, where the focus is on a facet of thejudicial process itself (e.g., did the appellantreceive due process?) the judges' expertise isparamount.

Activism on this dimension consists ofdecisions that (a) establish policy where thereis a reasonable likelihood that an alternativepolicymaking agency would have adopted asimilar policy in the foreseeable future, and/or (b) the nature of the policy is such thatchoices are better informed by data or exper-tise not normally available in the judicialprocess. Again Roe v. Wade serves as an illus-tration. The policy at issue was-as JusticeBlackmun's opinion conceded-illuminatedby physiology and medical technology, sub-jects normally beyond the ken of jurists.Moreover, several state legislatures had al-ready adopted policies similar in spirit if notdetail to the Court's, and public opinion pollsshowed majority support for liberalized abor-tion policies. Bell v. Maryland" where theCourt deferred consideration of the constitu-

55. For discussions of the information problem seeMiller and Barron, The Supreme Court, the AdversarySystem and the Flow of Information to the Justices. 62VA. L. REX'. 1187-1245 (1975); and Lamb, judicial Policy-Making and Information Flow to the Supreme Court, 29VAND. L. REV. 45-124 (1976).

56. 378 U.S. 226 (1964).57. 372 U.S. 355 (1963).58. 378 U.S. 500 (1964).

tional question surrounding the public ac-commodations issue while Congress was con-sidering the Civil Rights Act of 1964 is anexample of judicial restraint on thisdimension.

Gideon v. Wainwright57 is an example of (a)but not (b). There was considerable discus-sion of the merits and logistics of providingcounsel for indigent felony defendants at thetime of the decision and many legislatureshad taken steps to that effect. However, judgeswere certainly as knowledgeable as legislatorsin making policy so close to their own realmof experience. Aptheker v. Secretary of State5illustrates (b) but not (a). Congress and theState Department certainly knew more aboutthe national security implications of overseastravel by members of the Communist Party,but given the temper of the times, the pass-port provisions of the McCarren Act were notlikely to be repealed.

ConclusionJudicial activism is a central, if not wellunderstood, feature of the American politicalsystem. As such, it has long been subject toboth polemical and scholarly analyses, al-though sometimes it is not easy to separatethe two. Most such attention, however, hasbeen ad hoc or at least without a generalapproach to the phenomena. Thus, for mostof us, the concept of judicial activism haslittle common structure or meaning.

My purpose here has been to give the con-cept some structure and meaning. I have donethis by developing out of the literature sixdistinct dimensions of what has been termedjudicial activism. I have tried to remove orminimize the ideological components or moti-vations found in the literature. On my dimen-sions, judicial activism is a multi-directionalphenomena. It can be liberal or conservative,libertarian or statist, politically necessary orunnecessary, or, for that matter, unrelated toideology and politics at all. I hope that thesedimensions will prove useful to understand-ing judicial activism, and that they willsharpen discussions and analyses of it. 01

BRADLEY C. CANON is a professor of political scienceat the University of Kentucky

Bradley Canon - Judicial Activism

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