The Supreme Court’s recent decision Citizens United vs. Federal Election Commission has once again brought the notion of judicial activism to the forefront of debate. I think it is important to clarify what this term actually refers to as there seems to be quite a bit of confusion on the matter. Although the issue was not clear when the Constitution was ratified, the case of Marbury vs. Madison, or at least what has become the dominant interpretation of that case, has held that the Supreme Court is to be the last word on the meaning of the Constitution. Therefore, when the Supreme Court is interpreting the Constitution, it is engaging in its constitutionally prescribed role as the third branch of government. One could certainly argue whether or not the Supreme Court should have this authority. In my view, as long as the Court remains within the bounds of interpreting the Constitution, it is justified in having this authority. This power allows the judicial branch to serve as a check on the other two popularly elected branches of government, who may all too often be tempted to abridge fundamental rights in the attempt to appease the passions of an impetuous, albeit, many times, well meaning, majority.

The term judicial “activism” is typically used pejoratively to describe courts when they deliver an opinion with which one is in disagreement. It is argued that when judges invalidate what some may consider to be good legislation they are taking on an activist role. Nothing could be further from the truth. When courts invalidate legislation as being in conflict with the Constitution, they are usually simply doing their job. One example is the case of United States vs. Morrison, where the Supreme Court struck down a provision of the Violence Against Women Act, a provision which granted a civil remedy to women who are the victims of gender motivated violence, as being beyond the scope of Congress’s power to regulate interstate commerce. One may disagree with the Court’s decision, and even disagree with the Court’s decision as a matter of constitutional interpretation, arguing, along with the dissenters in that case, that more deference should be given to congressional fact-finding concerning the impact of violence against women on the economy. However, it would be disingenuous to say that the court is being activist simply because it invalidated a piece of legislation. It is certainly not unreasonable to conclude that the link between gender motivated violence and economic activity is not strong enough to support the legislation under a common sense understanding of the term “commerce.”

Judicial activism occurs when courts go beyond interpreting the law and take on the role of a legislature. This definition could perhaps be further clarified by looking at the distinction between the activities of interpreting the law and making public policy. The former involves analyzing texts and determining authorial intent, while the latter is concerned with, generally speaking, trying to do what is best for society. Recently Congress has been debating whether universal health care would be good for society. Would a public insurance option, designed to keep private sector insurance companies “in check” be beneficial, or would the costs outweigh the benefits? Fashioning public policy involves making complex evaluations about the potential effects of proposed legislation and balancing a diversity of interests across society, decisions that the courts are simply not equipped to make.

First, when legislatures are considering health care legislation, for example, they will hear testimony from experts in the health industry, economists and medical professionals on topics such as the costs of insuring different age groups, the strengths and weaknesses of government regulation, places where more regulation is required, where less regulation is required, if more revenue is required, who in society is best able to bear the cost? While a court would be able to pass judgment on whether some particular provision of health care legislation is in accordance with the Constitution, the text of the Constitution does not provide the necessary solutions to the complex policy imperatives that legislatures must consider. Second, economies and major industries such as healthcare are extremely complex entities. It is very possible, when legislating in these areas, to make a mistake. Maybe, we later come to realize, that Congress did not properly anticipate the amount of revenue required to fund a public health care system, or maybe the public health care system needs to be more robust in order to take in more people and provide better care, maybe we need to reevaluate things like caps on premiums for people over the age of 65, or what should constitute a “preexisting condition.” Mistakes in these matters are inevitable, but when legislatures make mistakes they have the advantage of being able to adjust for them, relatively quickly, by amending the legislation. Look how fast Congress acted to authorize the FTC to maintain a “no call list” after a federal court interpreted the agency’s delegatory statute as not granting that authority. On the other hand, when courts make public policy, thereby usurping the legislative role, mistakes can only be corrected by overruling a previous case, something the courts are extremely reticent to do, after parties bring a case, the case is litigated, the case is appealed through the proper channels, and jurisdictional requirements, such as standing, are satisfied. Courts in the United States do not render “advisory opinions.” The Framers sought to limit the power of the judicial branch by restricting its sphere of action to actual cases and controversies, to parties who have a concrete stake in the litigation, of course with the understanding that the judiciary exists to interpret the text of the law, not determine what the law should be.

The case of Roe vs. Wade is perhaps the most well known example of the Supreme Court veering away from its proper role as interpreter of the law and acting like a “super legislature.” Following Griswold vs. Connecticut, which found in the Constitution, somehow, the right to make one’s own decisions concerning family planning issues, Roe declared that there is a fundamental constitutional right to abortion in the first trimester of pregnancy. It may be the case, that as a matter of public policy, people should be able to make their own decisions concerning birth control or whether to bring a pregnancy to term. The question is whether this public policy issue should be decided by the courts engaged in the practice of inventive constitutional construction or elected representatives in state legislatures. I would presume, that if a state legislature were to take up the issue of abortion, they would invite testimony from biologists and medical experts about difficult matters like the viability of a fetus, or what particular abortion procedures are the most safe, or at what point a fetus feels pain, whether parental consent should be required and at what age, and on and on. Why did the Court limit the right in Roe to the first trimester of pregnancy? Did the justices who were in the Roe majority have some specialized knowledge about fetal viability in that period of pregnancy vs. a later period? How could the Court reasonably restrict the right to abortion to the first trimester without this knowledge? Legislatures, on the other hand, are designed to make these kinds of decisions. Our understanding of fetal viability and neurological structure may evolve with advancements in science, and if so, legislators can revise abortion laws accordingly. However, when the Supreme Court inscribes the right in the Constitution, legislatures are much more limited, if the need later arises, to further define the contours of the public policy in question.

Of course this is not to say that the distinction between making public policy and simply interpreting the Constitution is always clear cut. But I think one thing is true, and that is the further we depart from the actual text of the document, the more “penumbral,” as it were, the path our reasoning pursues, the more we approach the realm of policymaking. There can be considerable debate about whether a particular subject is addressed by the Constitution, and if so, what the Constitution has to say about it. There can be differing opinions, all based on sound legal reasoning, about how the language of the Constitution should be construed in this or that context, as long as these are the questions judges are asking, they are at least engaged in the right inquiry.