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Activism versus restraint

THE MYTH OF JUDICIAL ACTIVISM — Making Sense of Supreme Court Decisions: Kermit Roosevelt III; Universal Law Publishing Co. Pvt. Ltd., C-FF-1A, Ansal Dilkhush Industrial Estate (Opp. Hans Cinema), Azadpur, G.T.Karnal Road, Delhi-110033. Rs. 325.

Judicial activism, like public interest litigation, has acquired different meanings and degrees of acceptability in India and the U.S. The expansion of judicial power the world over, particularly in constitutional interpretation and human rights jurisprudence is a phenomenon which happened in recent times. While citizens by and large welcomed it, governments invariably reacted with disbelief on the legality and implications of such actions. Critics commented on the wisdom in maintaining judicial restraint and the dangers involved in judges imposing their preferences on the people instead of leaving it to elected representatives. At issue was the doctrine of separation of powers and the principle of the rule of law in democratic governance.

This book, originally published in the U.S. by the Yale University Press, is a scholarly analysis of how judges of the American Supreme Court were persuaded to adopt activism in cases involving, inter alia, equality rights and how a balance was restored by successive presidents using the power of appointment to the Court. The book reveals the truism that judgment on activism is good or bad depending upon what counts as activism on which there are as many opinions as there are people!

The author attempts to explore the elements of activism objectively by analysing a set of controversial judicial opinions on equal protection, gay rights, abortion, death penalty, taking of private property for public use and religious freedom. Conceding that the concept of activism is overworked, he offers an alternative idea of “legitimacy” to judge the interpretations adopted by the so-called activist judges. As he puts it, “It does not mean that the decision is compelled by the Constitution, or that it is the only legitimate resolution of the problem before the Court. But it means that the chosen resolution is within the realm of acceptable judicial behaviour, and the Court cannot be condemned for it.” By this approach, the author not only finds most judgments legitimate but also hopes to mellow “the surprising level of hostility towards the Supreme Court and toward judges.” The book does succeed significantly to help understand the grounds for disagreement with activist opinions of the Supreme Court and to provide a basis for a more objective analysis of theories of activism and restraint.

The book is divided into five parts of which the first part on what actually happens while judges decide constitutional cases sets the template for evaluating judgments listed in the following four parts. The author makes a fine distinction between drawing the meaning of a constitutional provision and choosing the rules that judges create to implement that meaning. He suggests that the key disagreement among Supreme Court justices is “not about Constitutional meaning but rather about how much deference the Court should give to the judgment of other government actors.” The standard of legitimacy which the author recommends to judge judicial opinions is based on the degree of deference which one considers appropriate in the facts and circumstances of the case. In other words, willingness to go by the government decision or otherwise will determine the choice of meaning that judges want to give to the relevant constitutional provisions. Though this model of judging activism is different and a little more objective from the usual rhetoric of good and bad judgments, it too suffers from the vagueness of appropriate level of legitimacy to be applied for deciding to defer or not to defer to other governmental actors.

Selecting judgments which led to criticisms against the Court, the author explains the application of the “legitimacy model” to decide on good and bad conclusions of activist opinions. In this effort, the author adopted what he calls a commonsense approach from the point of view of a concerned citizen. That makes the book attractive to the ordinary reader who may not particularly be interested in constitutional principles and doctrines. It is interesting to find striking parallels both in the judicial opinions rendered and the criticisms offered when one compares the Indian and American judiciaries as they took on the actions of the legislative and executive wings of their respective governments. Even the episode of one of the judges criticising his brethren for activism happened both in the U.S. and the Indian Supreme Courts. “Government by judges” is a slogan that found a great deal of attention in both countries.

At the same time, the author points out how an “activist” decision like Brown V. Board of Education (1953) which held school segregation as unconstitutional was widely welcomed as correctly decided. No one criticised it as an abuse of judicial power, though a different constitutional interpretation would have been possible and considered constitutionally correct. When there is no one clear right answer, the charge of activism can be made by those who are quick to pass judgments. The equal protection guarantee is one such constitutional question where there can be more than one right answer even on “plain meaning of text-based” interpretation. “Often a judge cannot enforce the plain meaning of the Constitution. This is not because the meaning is not clear. It is because the clear meaning exists at a relatively high level of generality.” As Justice Holmes said in Lochner V. New York (1905), “General propositions do not decide concrete cases.” For example, the Constitution may allow “reasonable restrictions” on freedom; but it remains for the Court to determine which acts are reasonable and which are not. Therefore, the author argues that the question to be asked in evaluating judicial decisions is how to ascertain its legitimacy rather than whether it deviates from the so-called plain meaning as one perceives it. Of course, one can disagree with even a legitimate decision but one has to accept it as a proper exercise of judicial authority. The legitimacy test is structured around doctrines like “tiers of scrutiny”, “rational relationship between means and ends”, “compelling governmental interest” etc. Doctrines are needed to mediate between the Constitution and specific decisions.

The major part of the book (Parts II, III and IV) is devoted to the evaluation of selected (controversial) judgments on the basis of court-evolved doctrines of legitimacy and deference to other government actors. By doing so, the author concludes that judgments make greater sense when they are found legitimate and the activism rhetoric fails to carry conviction. There are decisions whose legitimacy is much harder to establish and the author does not hesitate to declare them as bad decisions.

The final part of this amazingly readable and interesting book is devoted to striking a balance between the role and responsibility of different wings of government in the working of the Constitution. There is something troubling to the author when the Court claims that it is the sole body allowed to interpret the Constitution and its doctrines are equivalent to the plain constitutional meaning. This claim according to him is at the root of the hostility against the Court. At the same time, it is interesting to read the observation that unjustified attempts to intimidate the Court has, of late, led to the Court becoming too lax in supervising other governmental actors.

Calling the Court activist because of disagreement with the decision or because of dislike of its results irrespective of its legitimacy is a political pastime which is doing great damage to the institution. If constitutional law was nothing more than politics, these criticisms might make sense. But constitutional decision-making involves more than politics. It is possible to judge the Court with non-political standards which are more persuasive and logical.

The legitimacy model proposed in the book is one such standard. Whether the Court should have adopted a deferential stance to the judgment of other government actors on the issue is another such standard. Such standards and judicially evolved doctrines present a more productive framework for evaluating judicial performance and is an antidote to the loose talk of judicial activism. This is the message of the book.

The book should be compulsory reading for every judge, legislator and bureaucrat and a subject for discussion in judicial training programmes.

The publishers are to be congratulated for having brought out the Indian edition of this remarkably well-written book on a subject of contemporary interest in constitutional democracies everywhere.

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