The rhetoric of restraint and the ideology of activism.

• Author: Lindquist, Stefanie A.
• Position: Symposium: The Rehnquist Court in Empirical and Statistical Retrospective

Criticism of judicial activism has become commonplace in political debate. In recent years it has been political conservatives who have most often sounded the alarm that unelected, activist judges are intruding on the prerogatives of the elected branches. This criticism traces to the Warren Court era, when conservatives called for "judicial restraint" or "strict constructionism" in place of liberal judicial activism, contending that "when liberal Courts overturn democratically enacted laws in favor of liberal, activist constitutionalism, they destroy citizens' rights to democratic participation and self-government." (1) According to these critics, "liberal, activist judges" substitute their personal preferences for the will of the people. (2)

The controversy over judicial activism has become an important issue in recent election campaigns, as well as a central concern in debates over Supreme Court nominations. In 2004, for example, former Attorney General John Ashcroft claimed that "intrusive judicial oversight and second-guessing of presidential determinations ... can put at risk the very security of our nation in a time of war." (3) While much of the attack on judicial activism is populist in nature, academics and judges--such as Robert Bork, Charles Fried, Antonin Scalia and Michael McConnell--make similar arguments. Professor McConnell, for example, has objected that "rule by Judges" is "inconsistent with the principles of self-government." (4) At the time of his appointment, Justice Scalia expressed concern about an "imperial judiciary." (5)

Yet the claim that conservative judges are more restrained than their liberal counterparts has also been challenged, especially in connection with decisions rendered by the Rehnquist Court. The National Director of the ACLU declared that the Rehnquist Court had become "one of the most activist courts in American history." (6) Critics of the Rehnquist Court have claimed that conservative justices were quite activist when the substantive outcome satisfied their ideological preferences.

Justices may find restraint more palatable when they agree with the policy consequences of the government action being evaluated. Indeed, the potential for conflict between the justices' substantive ideological orientations and their professed belief in judicial restraint may manifest itself along several institutional dimensions. Conservative justices' substantive preferences for conservative policies may conflict with legislative, gubernatorial or judicial policy choices made at the state level (see Bush v. Gore, for example), all of which may be produced by elected bodies in the states. In this situation, not only are conservative justices faced with a conflict that implicates their commitment to judicial restraint, but to federalism as well. Or the justices' preferences may conflict with outcomes produced by the coordinate branches in the federal government. Thus, the justices may be faced with constitutional challenges to federal legislation, or to constitutional or statutory challenges to federal administrative actions, that require them to evaluate the propriety of decisions rendered by the elected Congress and the President. In these situations, the justices must decide whether to defer to the elected branches or substitute their own judgments for those of elected officials. Yet in doing so, they may find they face a tension between their preference about the substantive law or policy at issue and their commitment to judicial restraint.

In this paper, we explore these various dimensions by focusing on the degree to which conservative rhetoric advocating judicial deference to the policy actions of the elected branches (at the federal and state levels) actually comports with reality. In particular, we focus on (1) the extent to which the rhetoric of judicial restraint characterizes the voting behavior of conservative justices faced with constitutional challenges to federal and state statutory law, and (2) the extent to which such rhetoric is consistent with conservative justices' voting behavior in cases raising challenges to the administrative actions of the executive branch at the federal level. In our analysis, we equate judicial restraint with a tendency to uphold the decisions of legislators and federal administrative agencies.

We find that, although in both instances conservative justices were somewhat more "restrainist" toward legislative and executive action, that restraint was contingent on the source of the law at issue. Thus, after controlling for ideological preferences regarding the substantive policies challenged in the cases, conservative justices were more deferential to state (as opposed to federal) legislation, and to action by executive branch (as opposed to independent regulatory) agencies. These findings suggest that countervailing considerations may actually explain the conservatives' "restraintist orientation": (1) their ideological commitment to state power and principles of federalism, and (2) their ideological commitment to a powerful executive branch. Indeed, when read in tandem, our results reflect a conservatism that is particularly critical of congressional power.

1. DIMENSIONS OF JUDICIAL ACTIVISM

   Activism may take several forms. In his seminal article, Brad Canon defines six dimensions of judicial activism: (1) the degree to which policies adopted through democratic processes are judicially invalidated, (2) the degree to which earlier court decisions, doctrines or interpretations are altered, (3) the degree to which constitutional provisions are interpreted contrary to clear language or original intent, (4) the degree to which judicial decisions make substantive policy rather than preserve democratic processes, (5) the degree to which the judiciary eliminates discretion of other governmental actors and makes policy itself, and (6) the degree to which judicial decisions preclude serious consideration of governmental problems by other political actors. (7)

   Given the federal structure of our government, countermajoritarian activism itself has two dimensions. Judicial review may be invoked to invalidate federal or state laws; however, the invalidation of a federal law implicates somewhat different concerns than the invalidation of a state law or local ordinance. When the justices wield their power of judicial review to strike a federal statute, their action implicates separation of powers issues because the Court's decision challenges policy choices made by the coordinate branches. Similarly, when the justices invalidate decisions and actions of the federal administrative agencies, they encroach on the President's policy making authority within the executive branch. Such actions raise the potential for recriminations by Congress and the President, including reversal through constitutional amendment or restrictions on judicial budgets, among other things. (8) Moreover, in terms of majoritarianism, an act of Congress or the President at least arguably represents the will of the majority of U.S. citizens, rather than the majority of citizens within a particular state. Thus invalidation of congressional enactments and federal administrative decisions has more immediate national implications and thus broader countermajoritarian consequences. In contrast, Canon suggests that voiding state laws is "arguably less offensive in principle." (9) Practically, however, he recognizes that invalidation of a state or local law may also have national consequences to the extent such a ruling calls into question similar laws in other jurisdictions. Of course, such rulings are also "countermajoritarian" at the state or local level as well, and have the potential to alter the balance of power between the federal and state governments.

2. EMPIRICAL ANALYSIS OF ACTIVISM AND RESTRAINT

   This section presents empirical data on the degree to which judges appear activist or restrained in reviewing legislation or administrative actions. We begin with a simple count of the relative frequency with which individual justices vote to strike a statute or decline to defer to an administrative agency decision, reported in Table 1.

   A cursory look at these statistics provides some support for the assertion that conservative justices show more restraint. Justices White, Rehnquist, and Powell appear particularly deferential, while Marshall and Brennan were more aggressively activist. All the justices were more likely to strike legislation than agency action, although the relative difference varied widely among the justices. The association between conservatism and restraint is not strong, and the activism probabilities for Ginsberg and Breyer are not materially different from those for Thomas and Scalia.

   Descriptive or bivariate statistics like those in Table 1 are suggestive, but they may generate false conclusions because of the absence of control variables that provide alternative explanations for the votes. For example, this frequency distribution fails to account for the source of the statute or agency decision and the ideological direction of the enactment or agency action under review.

   In the following section, therefore, we use multivariate regression to compare the effects of several factors likely to influence the justices' votes in cases involving challenges to legislative enactments and agency action. These more comprehensive models include variables that account for the influence of ideology and the source of the policy at issue, while controlling for other factors that might influence judicial behavior in these important cases. We begin with our model of judicial review of legislation at the state and federal level, and then turn our attention to judicial review of administrative agencies.

   1. JUDICIAL REVIEW OF LEGISLATIVE ACTION

      Many of the most controversial Supreme Court decisions, and those most likely to be condemned as activist, involve invalidation of legislation...