Vol. 13 No. 6 (June 2003)

 

THE LEAST DANGEROUS BRANCH?  CONSEQUENCES OF JUDICIAL ACTIVISM, by Stephen P. Powers and Stanley Rothman. Westport, Connecticut: Praeger Publishers, 2002.  221 pp.  Hardcover $69.95.  ISBN: 0-275-97536-3.  Paper $24.95.  ISBN: 0-275-97537-1.

 

Reviewed by Eli Paul Mazur, law clerk to the Honorable James A. Wynn, North Carolina Court of Appeals.  Email: epm1776@yahoo.com .

 

In his seminal work, THE LEAST DANGEROUS BRANCH, Alexander Bickel brilliantly defended judicial review in the wake of BROWN v. BOARD OF EDUCATION.  Bickel acknowledged that judicial review posed an inherent "counter-majoritarian difficulty:" why should nine unelected lawyers have the ultimate authority to invalidate the majoritarian will?  In justifying this "difficulty," Bickel articulated a defense of judicial review based upon the very institutional qualities that made judicial review repugnant to democracy.  Bickel believed the judiciary was uniquely qualified to assess executive and legislative actions because of, and not in spite of, insulation from public opinion and pressure.  The judicial branch's insulation from popular will (elections) allowed it to be faithful to the sovereign will (the Constitution).  Although Bickel cautioned the judiciary from entering into the political fray, Bickel argued the "passive virtues"—requirements and limitations of standing, ripeness, mootness, and political questions—protected the judicial branch from over-exercising its ultimate power and undermining its own legitimacy.

 

In THE LEAST DANGEROUS BRANCH? CONSEQUENCES OF JUDICIAL

ACTIVISM, Stephen P. Powers and Stanley Rothman, in light of fifty years of expanding judicial power since BROWN, ask whether the judiciary should still be considered "the least dangerous branch."  The book is substantially a synthetic work, relying on previously published quantitative research.  Powers and Rothman assess an enormous collection of data, but, in the place of sound analysis and conclusions, the authors make spurious accusations.  Instead of crafting a theory or demonstrating verifiable consequences of judicial activism, Powers and Rothman shift the blame for modern judicial activism to "the most vociferous institutional reformers[,] . . . spawned by the American Civil Liberties Union" (p. 184), who "target[ed] sympathetic federal judges . . . in advancing just the kind of causes civil libertarians loved, administrators hated, and the rest of society would bear the cost of for years to come" (p. 184).  While the book is useful as a synthesis of previous data and existing literature, the analysis in THE LEAST DANGEROUS BRANCH?  CONSEQUENCES OF JUDICIAL ACTIVISM suffers from the authors’ implicit, though undefended, assumptions about the role of the judiciary and interest groups in our system of government.

 

In their introductory chapter, Powers and Rothman define the scope of their inquiry:

When we speak of "judicial activism," we must be careful not to confuse it with the power of judicial review itself.  The fact that the judiciary interprets the Constitution and other laws in one way or another is not in itself indicative of judicial activism at all.  What the Supreme Court and the lower federal judiciary have been engaged in during the past fifty years is the systematic application of  jurisdictional principles derived from the Constitution . . . to the reform of public  institutions. . . . [T]he judiciary has intervened to alter the operation of public schools . . . correctional facilities, police departments, mental health facilities, and electoral districts (p.1-2).

 

Powers and Rothman contend that an analysis of the judiciary's interventions into these public policy arenas reveal two primary forms of judicial activism.  First, in cases involving prison litigation, mental health reform, criminal procedure, and busing, the judiciary has been "profoundly influenced by the [public law bar's] preoccupation with fundamental rights" (p.133).  After the judiciary is persuaded by the intellectual elite that an institution is violating a fundamental right, the judiciary proposes a remedy which is "actively" administered by the courts.  For Powers and Rothman, courts are not the best institutional actors to administer public bureaucracies.  Essentially, politically unaccountable judges should not render decisions with broad public policy implications.  Second, in cases involving affirmative action and voting rights, Powers and Rothman argue, the judiciary has entered into a "tortured logic" (p.66) that requires "a reinterpretation of statutory law amount[ing] to a substantial alteration of the intent of Congress" (p.2).  For Powers and Rothman, when engaging in this "classical form" of judicial activism, "the intended beneficiaries . . . have suffered . . . adverse impacts" (p.88).

 

In Chapter Two, the authors explore the consequences of judicial activism in the area of school desegregation.  After an excellent and exhaustive review of BROWN, its progeny, and empirical studies of BROWN's effects, Powers and Rothman conclude that busing to achieve racial balance and "forced integration . . . caused the mass exodus of whites from public to private or parochial schools and the cities to the suburbs" (p.50).  In addition to "white flight," Powers and Rothman conclude, "desegregation . . . seems to have been largely unsuccessful in improving the academic performance of black students" (p.51).  As desegregation appears to have failed, Powers and Rothman speculate that "policy makers may have overlooked alternative approaches for improving black academic performance" (p.57).  However, despite their presentation in Chapter One, it remains unclear how Powers and Rothman believe that the judiciary's unique role in administering school desegregation contributed to the policy failure.  Although the authors present a strong case that "desegregation had the ironic effect of reinforcing racial stereotypes" (p.56), their analysis, though penetrating in exposing the limitations of the judiciary to effectuate a specific social policy, reveals little about the nature of judicial review or activism.

 

In Chapter Three, Powers and Rothman explore the origins, evolution, and consequences of affirmative action.  Despite conceding that affirmative action policies "were principally initiated through presidential leadership" (p. 59.), the authors argue the Supreme Court, particularly in GRIGGS and BAKKE, played a "decisive role" and "endorsed an aggressive enforcement policy by federal civil rights agencies" (pp.86-7).  After introducing empirical data substantiating a claim that "preferential admissions policies . . . have contributed to exaggerated dropout and failure rates among black college, graduate, and professional students," Powers and Rothman conclude that affirmative action "can hardly be considered a benefit to blacks who succeed on their own merit, or to those who do not succeed because they are mismatched to these institutions, or to the white and other minority students who have been displaced" (p.77).  For Powers and Rothman, "affirmative action . . . is an elite-driven government entitlement program lacking majoritarian support" (p.85).  Again, although the authors collect an awesome array of empirical data, ultimately they fail to demonstrate how judicial review, judicial activism, or the unique role, structure, or function of the judicial branch specifically caused the alleged detrimental consequences.

 

In Chapter Four, Powers and Rothman address the judiciary's recognition of prisoners' rights and the consequences of judicial activism in correctional reform.  Through a review of empirical studies, the authors demonstrate an explosion of prisoners' litigation: "218 cases in 1966 . . . . to 26,824 in 1992" (p.93).  In their view, this increase is directly attributable to the Supreme Court's decision in COOPER v. PATE, granting prisoners' standing to seek redress under federal law.  Although not expressly disputing the judiciary's authority to grant, or prisoners' rights to have, such standing, Powers and Rothman fault the judiciary for entering the public policy arena of prison reform with the heavy hand of court administered remedial measures:

 

The desegregation experiment had already set a precedent for extensive judicial oversight of administrative procedures.  Judges sensed that they could achieve compliance with newly interpreted constitutional mandates as long as they remained active participants in the bureaucracy.  As in the case of busing and affirmative action, judicial activism itself encouraged advocacy groups to organize and pursue long-term litigation strategies. . . . The courts were thus instrumental in encouraging advocacy groups and a constituency of inmates "to seek the federal courts out for a new service" (p.99) (citation omitted).

 

Powers and Rothman argue this judicial intervention "resulted in increased violence in prisons" (p.100), and negatively affected "correctional officers, both attitudinally and behaviorally" (p.102).  Although Powers and Rothman concede that "[p]risons . . . represent a special problem of accountability" (p.110), seemingly because legislatures need not be responsive to the concerns of a disenfranchised minority, Powers and Rothman assert that "far-reaching constitutional rulings may have in some cases proved injurious to prisoners, prison officials, and institutional stability" (p.111).  Because the authors fail to reveal the quality of their secondary quantitative data supporting these conclusions, such as R-squares or control variables, it is difficult to judge the relevance of their conclusions.

 

In Chapter Five, the authors explore the consequences of judicial activism in the arena of mental health deinstitutionalization.  The authors concede that "the impetus for mental health reform did not originate with patients' rights advocates or the courts.  [Rather, i]t began with exposés of the abuse and neglect that had become commonplace in underfunded and understaffed mental hospitals with burgeoning patient populations" (p.113). Despite the need for intervention, Powers and Rothman fault the courts for embracing an idea expounded by the "intellectual elite" that "mental institutions [were] coercive mechanisms of the dominant social and state order" (p.115):

 

In their effort to secure a veil of individual rights to protect a diverse array of constituents, public law litigants like the ACLU are overwhelmingly concerned with establishing legal precedents favorable to their client group.  They are only very remotely concerned with the consequences of their legal victories.  To the extent that the courts have supported civil rights advocates in these efforts, they have perhaps hindered the development of more pragmatic policies that would provide the necessary help to the mentally ill (p.135).

 

Powers and Rothman assert that the "ACLU's view was itself highly exaggerated" (p.121).  Indeed, they argue, "mental health hospitals were in need of reform, but the goal of the [ACLU] was to shut the hospitals down, not to reform them" (p.121).  In pursuit of this goal, the ACLU achieved, with the complicity of the courts, precedent that raised the bar for involuntary commitments and created a right to treatment.  As a result of these decisions, "[b]y 1992 mentally ill patients under custodial care had declined by more than 80 percent" (p.125).  However, according to the empirical studies collected and analyzed by Powers and Rothman, the release of mentally ill patients in the name of fundamental rights "has created terrible dislocations and human suffering" (p.136) and has left “a large class of homeless mentally ill who receive little or no treatment" (p.126).  For Powers and Rothman, although "the deplorable conditions of mental hospitals in the 1960s and 1970s cannot be overlooked, in championing the deinstitutionalization movement, civil rights advocates [and the courts] appear to have exchanged one set of unacceptable circumstances for another" (p.133).  As in previous chapters, the authors fail to demonstrate a causal link between judicial intervention and the alleged detrimental consequences of the challenged public policy.

 

Chapter Six explores the effect of judicial activism in criminal procedure.  Specifically, the authors analyze MAPP v. OHIO, extending the exclusionary rule to the states, and MIRANDA v. ARIZONA.  For Powers and Rothman, MAPP and MIRANDA were products of judicial activism because "the Supreme Court impos[ed] a particular remedy for a constitutional violation [upon the states], which . . . ran beyond the boundaries of judicial authority" (p.141).  Furthermore, tentative empirical studies discussed by Powers and Rothman suggest that MAPP and MIRANDA correlate with a significant increase in crime (pp.144, 150-51).  From these tentative data, Powers and Rothman speculate that "in fashioning remedies to protect the accused, the courts may have actually created more favorable conditions for criminal activity, hindered law enforcement, and perhaps compromised the average citizen's chances of remaining free from criminal victimization" (p.154).  For a discriminating reader, this chapter lacks sufficient statistical foundation to confirm the authors’ broad claims.  Although Powers and Rothman cite numerous studies, they fail to reveal, or even discuss, the quality of the data, such as R-squares or control variables. Moreover, alternative explanations are virtually unexplored.  Perhaps the rise in crime was attributable to the baby-boom?

 

Finally, Chapter Seven presents a critique of judicial intervention in voting rights.  After a thorough review of attempts by southern states to impede enforcement of the Fifteenth Amendment, and cases interpreting the Voting Rights Act of 1965, Powers and Rothman explore the consequences of "race-based" redistricting and the creation of majority-minority voting districts:

 

At least two important consequences have been identified by researchers.  One is that racial redistricting may reduce party competition within the districts themselves.  The other is that the creation of majority-minority districts tends to favor more conservative candidates in surrounding districts (p.168).

 

Accordingly, Powers and Rothman argue that the judiciary, while attempting to increase the number of African-Americans in Congress, has actually "dilute[d] substantive minority voting strength" by "bleach[ing] surrounding districts" and "diminish[ing] the potential of African-American representative to build coalitions across racial lines" (p.169).  Although Powers and Rothman acknowledge critics of this thesis, ultimately they dismiss these critics as supporting a democratic theory "a majority of Americans

[do not] understand" and as "strongly opposed to the American electoral system writ large" (p.174). 

 

Ultimately, THE LEAST DANGEROUS BRANCH?  CONSEQUENCES OF

JUDICIAL ACTIVISM fails to make a clear statement about judicial activism.  Although Powers and Rothman synthesize a collection of empirical studies in areas effected by judicial intervention, they fail to demonstrate how, why, or if, judicial intervention was the cause of the alleged public policy failures in these areas.  One of the biggest problems with the quantitative data is that the authors simply cite studies and results, with no information given to the reader about the actual models. Thus, it is difficult for the skeptical reader—and considering their strong claims about the role of the ACLU and public law litigants in general—to find convincing evidence for the claims put forward.

 

Despite notable reservations, this book is valuable to scholars seeking a reference work that addresses recent literature dealing with the apparent empirical consequences—whether statistically correlated or not— for public policy substantially administered by the judiciary.

 

REFERENCES:

Bickel, Alexander.  1962.  THE LEAST DANGEROUS BRANCH. Indianapolis: Bobbs-Merrill.

 

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION OF TOPEKA, KANSAS, 347 U.S. 483 (1954).

 

COOPER v. PATE, 378 U.S. 546 (1964).

GRIGGS v. DUKE POWER CO., 401 U.S. 424 (1971).

 

MAPP v. OHIO, 367 U.S. 643 (1961).

 

MIRANDA v. ARIZONA, 384 U.S. 436 (1966).

 

REGENTS OF THE UNIVIVERSITY OF CALIFORNIA v. BAKKE, 438 US 265 (1978).

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Copyright 2003 by the author, Eli Paul Mazur.