From The Law and Politics Book Review

Vol. 9 No. 1 (January 1999) pp. 40-43.

Response by Christopher Wolfe to the review of his book JUDICIAL ACTIVISM - BULWARK OF LIBERTY OR PRECARIOUS SECURITY?

EDITOR’S NOTE: The publication of Professor Wolfe’s Response to the April 14, 1998 review of his book was delayed due to an oversight by the editor; Professor Wolfe submitted the response in May, 1998. The Editor apologizes to Professor Wolfe for this error.

 

The Law and Politics Book Review normally publishes thoughtful and balanced reviews of works in the field, so I was a bit dismayed at Dennis Dorin's philippic against my JUDICIAL ACTIVISM. Getting a review like that may simply be an occupational hazard of writing in a field loaded with normative implications. And, after all, I have published some fairly sharp reviews myself, so I was tempted to think that I was simply getting some of my own--what goes around, comes around. On second thought, though, it occurred to me that there is a difference. I give my critical comments after extensive and fair description of the ideas of the author under review. Professor Dorin doesn't extend the same courtesy to me.

Most of the review focuses on the introduction to the book, which frames the issue of judicial activism by drawing on the interpretive history of judicial review I developed in THE RISE OF MODERN JUDICIAL REVIEW. This interpretation is caricatured as an attempted return to a "golden age", to "Eden" (terms, and ideas, I wouldn't think of using). Like most legal realists of various stripes, Professor Dorin finds it hard to take seriously the idea that there was general agreement on rules of interpretation, that judges attempted to interpret the Constitution rather than mold it, and that they sought to limit judicial review to clear (not doubtful) cases.

Professor Dorin notes that early decisions were often bitterly and widely contested, and asks a series of questions, which he apparently, but mistakenly, assumes to be decisive refutations. (The following responses are brief, but indicate that there are responses.) 1) "Where, explicitly in the Constitution, was Marshall's concept of judicial review?" It wasn't there explicitly. It was implicit, not only in the structure of the whole document, but in provisions such as "the federal judicial power. . .shall extend to cases arising under the Constitution". 2) Where was Marshall's "distinction between a Cabinet officer's political and ministerial duties?" Implicit in the separation of powers: the legislature's right to create executive officers and assign them duties, but also the executive's right to exercise his own discretionary powers independently of the legislature. 3) Where was Marshall's "exclusive reading to the Court's original jurisdiction?" In the specification of the original jurisdiction in the document itself, and its leaving "all other" matters to appellate jurisdiction. 4) Where does Marshall's "recognition of implied powers in MCCULLOCH come from?" From a universal recognition that not every detail can be written into a constitution, and that much must be left to be derived from the specific grants--as well as the necessary and proper clause. 5) What is the basis for Marshall's "broad conception of the Territorial Clause there--one utterly renounced by Taney in DRED SCOTT?" It comes from the broad language of the document, which gives Congress general power, despite Taney's attempts to read restrictions into it. 6) "Did Marshall nail what everyone knew to be the parameters of the Commerce Clause in GIBBONS V. OGDEN?" Whether "everyone knew" anything is irrelevant, of course; the fact is that Marshall makes a powerful case for the clause implicitly restricting state powers--which is especially persuasive, given the original understanding of the clause as preventing commercial barriers to interstate commerce. 7) Does "Taney's Court" nail the parameters of the Commerce Clause "in its commerce cases?" I think not, though Cooley v. Board of Wardens is a better attempt--one that tries to come to grips more honestly with the language of the Constitution--than the modern Court's ad hoc balancing approach. 8) "Wouldn't a Spencer Roane Chief Justiceship have been dedicated to the destruction of all sorts of major Marshall Court holdings, such as MARTIN V. HUNTER'S LESSEE and COHENS V. VIRGINIA?" Yes--which is why it was a blessing that the nation was spared a Jeffersonian judiciary, since Jefferson most readily, among the leading founders, attempted to read into the Constitution (against its original meaning) his own conception of popular government. 9) "What about Marshall's paean to an evolving Constitution, whose broad provisions were to be 'adapted to the various crises in human affairs'?" There was no such paean, of course. Though careless modern readers assume that the adaptation Marshall was referring to was judicial adaptation, any attention to the text would make it clear that it was Congress' power under the necessary and proper clause that was being referred to. 10) "Didn't substantive due process first emerge in Taney's defense of slavery in DRED SCOTT--in the face of a powerful attack upon it as an exercise in unjustifiable activism by Justice Curtis?" Yes, as I argued IN THE RISE OF MODERN JUDICIAL REVIEW--but the fact that Taney wrote a bad opinion in Dred Scott does not mean that he was systematically committed to any form of judicial activism, as the nature of modern Court balancing does. In fact, he appeals--wrongly, I think--to the "original intent" of the framers in that case. Which only proves that using the right approach to interpretation doesn't by itself guarantee that you'll get the right result. (And yes, there are "right results"--if not, why have judicial review at all?)

Professor Dorin seems to think that, if he shows there was controversy in the founding, that disproves my argument that there were generally accepted rules of interpretation and that, by and large, judges were serious in their efforts to discern the meaning of the Constitution rather than mold it. But controversy about the application of generally accepted rules is something I specifically acknowledge in the text (p. 14), and it disproves nothing of what I say. (I also discuss this issue in the afterword to the revised edition of THE RISE OF MODERN JUDICIAL REVIEW).

Professor Dorin's attempt to prove that it is "untenable" to restrict judicial review to "clear cases" betrays a misunderstanding of the point. He argues, with regard to "the Justices' conflicts-on-the-Circuits policy" that: "Today, a constitutional conflict on the Circuits might well bring a case before them. A lack of clarity in the law may be creating a most undesirable situation, maybe even a crisis, of the Constitution's meaning very different things in various parts of the country. Such a state of affairs, however, would apparently cause few problems for Wolfe's federal judiciary! 'Is the Constitution really unclear here? Well, then, order the district courts to dismiss all of the litigation. This is obviously not a case for our intervention. Congress and the President should define what's constitutional on this one--along with the few hundred other such issues we've referred to them this term.'"

If the Constitution were genuinely unclear in the particular matter at issue, the Court could--and should--simply resolve the matter by upholding the law (upholding lower court decisions, which had declared it constitutional, overturning lower court decisions that had struck it down). Why should the Court's preferred reading trump the political branches' reading if it has no clear authority from the Constitution? Nothing has to be "referred to" Congress and the President--they've already dealt with the issue in passing the legislation. There's no crisis here, no lack of uniformity. . .

When Professor Dorin does get around to the rest of the book beyond the introduction--briefly--he starts off by alleging that I "impl[y] strongly that the John Stuart Mill of ON LIBERTY would have welcomed [my] dialectic." (All I did was to cite Mill on the advantages of having a dialectic--I didn't say or imply anything about what he would think of my dialectic.) According to Professor Dorin, "the last thing Mill would have wanted was for an opponent of the activist position, like Wolfe, allegedly to be stating its strongest points and evidence, while simultaneously subjecting them to his attempts at a refutation. That, Mill admonished us, was not the way to do them justice. We must, instead, 'be able to hear them from the persons who actually believe them, who defend them in earnest and do their very utmost for them.' (Mill 1985, 99). So, were he really to employ Mill's dialectical approach, Wolfe would have to recruit an eminent activist to co-author his book with him."

This is silliness, of course. Such a co-authored book would certainly be legitimate and useful, but it is hardly a requirement. Mill's ON LIBERTY itself is a wonderful example of dialectic, with Mill going back and forth between his own argument and that of imagined opponents. His point in the quoted passage was that it would be undesirable to forbid opponents to speak, not that it is impossible for one person to construct a worthwhile dialogue, even if he were committed to one side, as Mill certainly was regarding free speech.

On the rest of the book, Dorin can muster no more than the assertions that the arguments given in the book are "lifeless," that the arguments for restraint almost always have the last word, and that there is lots of question-begging. He gives no example of the alleged question-begging. Restraint (usually) does get the last word--I never claimed to be writing from a position of neutrality--but the last speaker isn't necessarily the "winner." (Mill always gets the last word in ON LIBERTY, and I often find that the earlier arguments are the winners.) Only his own ideological predispositions, and unwillingness to take the opposing side seriously, could blind the reviewer to the good-faith presentation of both sides in JUDICIAL ACTIVISM.

Professor Dorin ends with the observation that he has interviewed fourteen United States Supreme Court Justices, on a spectrum ranging from "liberal" ones like Warren, Black and Douglas to "conservative" ones like Scalia and Thomas. "Not one of them, I can report, has ever told me that he or she is an 'activist.' Not one has ever said that he or she is willing to violate the Constitution. Moreover, not one would ever maintain that the Court should only decide 'clear' cases. Not one would ever contend that a common-sense interpretation of the Constitution's most general, and often, most important, provisions would ever permit it."

Which all proves exactly nothing. Are we surprised that Warren and Douglas don't own up to being "activists?" Yet, on virtually any understanding of that term, virtually everyone would characterize them that way. It is only the demands of democratic politics that lead them to shy away from the term. Are we surprised that none of them will say that they would violate the Constitution? Why should they say that, when they have such variegated understandings of what "the Constitution" is that those who reject the meaning given it by its authors and ratifiers can still claim to be faithful to it, that is, to their own idealized versions of it? Not one, he says, would ever maintain that the Court should only decide clear cases. But, putting to the side cases of statutory construction (my point about clear cases referred only to the exercise of judicial review), and putting aside also (as I note at the end of the book) the complications of duty to precedent, I think that Scalia and Thomas--and almost only they--would argue, not that unclear cases shouldn't be decided, but that in such cases judges ought to uphold the actions of the political branches. That other justices, being dedicated to typically broad modern conceptions of judicial power, are only too willing to decide unclear cases will come as no surprise to anyone, and proves nothing.

"The issue then," Professor Dorin concludes, 'would not be whether social engineering by the Justices is EVER appropriate. We never have had, and never will have, the implementation of the Constitution without it. The question might then be "when, in what form, to what extent, and with what consequences?'

The question, that is, is not whether judicial activism is good and desirable--that's obvious and apparently it doesn't need to be discussed--but only when it should be employed, and in what form, and with what results. The problem with JUDICIAL ACTIVISM, then, is that it has the temerity to ask questions about the pros and cons of judicial activism instead of confining itself to asking about which case for judicial activism is the best one. Professor Dorin's review is simply an example of a prevailing academic orthodoxy becoming irritated and upset when it finds itself questioned. The easiest response is just to deny that the question is worth considering.

 

Copyright 1995