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What Backlash Against Activist Judges?

By pharrell

In the past few years, conservative academics and even a few liberal law professors have claimed that activist judges of the 1960s and 1970s spurred a great public backlash against the judiciary, and that the activist decisions of that era did grave damage to the popular legitimacy of the judiciary. This belief motivates not just "originalists," who would restore some misguided vision of the jurisprudence of the 19th century, but also the "minimalists," like Chicago's Cass Sunstein, who believe that judicial decisions should avoid sweeping pronouncements of rights in favor of "narrow" rulings.

To put it bluntly, there's just no evidence for this contention. It is true, of course, that a few decisions, notably Roe v. Wade, remain intensely contested. But the overwhelming majority of the liberal jurisprudence of that era is today settled law--indeed, for members of my generation, it is difficult imagine an America in which we didn't have the rights given us by the Warren Court.

Take privacy. Not just the privacy of Griswold, which established that the government couldn't prevent a woman from buying birth control pills, but the more basic notion that government agents can't listen in on your phone call to your mother without a warrant. That right simply didn't exist before Katz v. United States, in 1968. Or take religious freedom. While we still debate the limits of student-led prayer, "moments of silence," and the Pledge of Allegiance in public schools, few today would argue that a school should be permitted to compel pupils to recite Christian verse composed by school administrators--a practice that was entirely routine until the Supreme Court banned it in 1962 (Engel v. Vitale).

Or take free speech. In this internet age we take it for granted that we can mock public officials on online discussion boards. This right was established by New York Times v. Sullivan in 1964; prior to that, criticism of a local sheriff might have landed the speaker with a hefty libel judgment. In the 1950s the government could throw you in jail for planning to publish leaked documents--before you even published them.

Or talk about gerrymandering. Outrageous as district-drawing is today, it was far worse before 1962, when Baker v. Carr first prevented states from drawing a legislative district that had several times as many residents as others, effectively giving the people in the more populous district a fifth or a tenth the electoral power of their neighbors in other districts. There was no guarantee of "one man, one vote."

Even the criminal justice rights, some of the most hotly contested rights at the time of their creation, have come to win widespread acceptance. Our Miranda rights take their name from Miranda v. Arizona (1966), and the poor were not guaranteed legal representation at their own criminal trial until Gideon v. Wainwright, in 1963.

So where have we seen backlash? Roe, of course, is exhibit A. But the backlash against Roe isn't because people reject the idea of privacy, or equal protection for women (a rationale that has been offered since). It is, rather, because large numbers of Americans believe that fetuses are people, endowed with rights that triumph over a mother's privacy and equal protection rights. It is this belief in the humanity of the unborn, a belief about which the constitution provides no guidance, and not any inherent flaw in the idea of a right to privacy, that explains why Roe and not Griswold or Katz remains contested. There was also a significant backlash against judicial efforts to prohibit the death penalty, a backlash strong enough that the court eventually relented on that issue. And there remains strong popular opposition to decisions that restrict individual religious liberty.

These issues are united by a common theme of religion: religious belief underlies opposition to Roe, religious acceptance--an eye for an eye--motivates much popular support for the death penalty, and of course religious belief directly motivates opposition to any restrictions on religion itself. It is hardly surprising that religion should be the touch point of opposition to judicial decisions, given the preeminent importance of faith in individual moral life. More importantly, judicial opinions win acceptance when and because they logically fit within a cohesive framework of constitutional ideology: when acceptance of the basic constitutional ideological principles of America--life, democracy, personal liberty, and the right to pursue happiness--lead logically to the holding at hand. Free speech fits within that framework; so does a right not to be spied upon by our government; a right to have our vote counted equally with our neighbor's; and a right to a fair trial. There are no deep-seated countervailing philosophical strains within American life that challenge these rights; even at the time the rights were decreed, opponents could cite little more than past historical practice and the ornery desire for an efficient government. Both of these can be defeated by logic. But decisions that counter religious doctrine offer no irrefutable logic that prove their correctness over competing philosophical ideas fundamentally grounded within an entire different framework of belief. These decisions will remain controversial until reversed, until religious doctrine changes, or until a new generation simply ignores whatever religious teaching motivated the initial opposition.

In pointing out that past opinions have been accepted by the public, I am not defending the activist judges of today. In my personal beliefs I'm profoundly democratic, and I believe that we should seek recourse to the ballot box to pursue our policy agenda. But I also believe that over the years we have used the democratic process to make certain constitutional commitments, to create a government of limited powers that cannot simply impose its will on the citizenry as it deems fit. It is the role of the judge to ensure that these deeper commitments are kept. Indeed, judicial opinions that forcefully defend these commitments, and that do so with eloquence, can come to better define the commitments themselves. As a simple matter of historical fact, contrary to a certain trend in modern legal thought, judicial decisions do so will attain wide popular acceptance. The idea of a widespread "backlash" is a myth, spun out of (admittedly intense) public opposition to a small number of decisions implicating religious belief. Myth should hardly serve as a basis for a fundamental reinterpretation of constitutional philosophy.

Full post as published by Harrell Blog on December 19, 2007 (boomark / email).