The Proper Role of "Judicial Activism".

• Author: Bolick, Clint
• Position: Thirty-Seventh Annual Federalist Society Student Symposium

The last time I was invited to speak at the Federalist Society National Student Symposium, (1) never in my wildest dreams did I imagine that the next time I spoke at the Symposium would be as a Justice of the Arizona Supreme Court. Yet, here I am, as a judge. And once again, I am going to extol the virtues of an activist judiciary--here at the Federalist Society, of all places. How on earth could I make such a provocative, if not downright shocking, argument? "Judicial activism" is the universal pejorative. It is one thing on which both the right and left, red and blue, agree--that judicial activism is horrible. (2) But think about this for a moment: Every single person in this room is an activist. We are here because we are activists. After all, the opposite of activism is passivity, and perish the day that any of us are accused of passivity.

The devil, of course, is in the definition. I define judicial activism as any instance in which the courts strike down a law that violates individual rights or transgresses the constitutional boundaries of the other branches of government. In that regard, the problem with judicial activism is not that there is far too much, but that there has been far too little. This is due to the explosive growth of government power at every level. (3) From our nation's founding, it took 169 years--until 1958, two decades after the New Deal had been enshrined in federal law--for the U.S. Code to reach 11,000 pages. (4) It took only 42 years--to the year 2000--for the number of those pages to quadruple. (5) One quarter of the time, yet four times the amount of federal laws. And of course, those laws have grown substantially since then. (6)

So it stands to reason that if we have four, or five, or six times as many laws as we did in 1958, we ought to see four, or five, or six times as many judicial decisions striking laws down as unconstitutional, unless we have fewer unconstitutional laws today than we had in 1958. That is quite unlikely. To the contrary, every student of the Constitution and of the various branches of government knows that, once upon a time, the President and the Congress debated endlessly over whether they had the constitutional authority to do what it was that they wanted to do. (7) In fact, that is why we have a Fourteenth Amendment--because Congress was persuaded that the civil rights laws that it wanted to pass were beyond the scope of its constitutional authority. (8)

When was the last time you saw an elected political official agonize over whether he or she possessed the power to enact a law? It was only a few years ago that President Bush signed into law the McCain-Feingold Act, recognizing that "the bill does have flaws" and expressing "reservations about the constitutionality" but stating that he "expect[ed] that the courts [would] resolve these legitimate legal questions as appropriate under the law." (9)

Today, much of our law is made not by officials who are democratically accountable to the people, but by unelected bureaucrats who are not. (10) The growth of the U.S. Code pales in comparison to the growth of the Federal Register, the compilation of agency-made law. (11) And what has been the judiciary's response? The Chevron (12) Doctrine--which, if we had an Academy Awards for judicial abdication, would be strolling down the red carpet right now. (13)

From what source does the judicial power and duty to strike down unconstitutional laws derive? It derives from the genius of our constitutional republic. (14) As Hamilton argued in Federalist No. 78, "[n]o legislative act. contrary to the Constitution, can be valid," and "the courts were designed to. keep the [legislature] within the limits assigned to their authority." (15) To be sure, Hamilton also presciently warned that the judiciary itself could become dangerous if it ever exercised executive or legislative powers. (16)

It ought not be an option for a court to "fix" a seemingly unconstitutional statute. Justice Scalia was famous for saying that, if the legislature produces garbage and the Court is asked to interpret it, the Justices' constitutional obligation is to return garbage. (17) "Garbage in, garbage out." (18) Of course, if there are two competing ways to interpret a statute, the judge should interpret the statute in the way that makes the statute constitutional rather than the way that would make it unconstitutional. That proposition is not only compelled by the separation of powers, but is a core rule of statutory interpretation. (19) However, the problem arises when a judge is inclined to rewrite a statute that, as written, cannot be interpreted in such a way as to make it constitutional.

The Arizona Supreme Court recently adjudicated a case involving a question of statutory interpretation related to a parental-rights provision. (20) Arizona has a statute that says that, if a parent fails to appear at the hearing for termination of parental rights, that person waives his parental rights. (21) The issue before the court was whether the parent's absence is determined at the beginning or the end of the hearing. (22) In addressing this question, my colleagues on the Arizona Supreme Court used a variety of statutory construction tools. (23) But frankly, I am sure the legislature did not even think about this question when it wrote the statute. Unsurprisingly, the justices' statutory construction tools resulted in interpretive conflicts. (24) For instance, two other justices and I read the statute's language and determined that there was only one constitutional way to interpret the statute: A parent only waives his rights if he is absent for a severance or termination hearing. (25) For if a parent could waive his parental rights by missing the beginning of the hearing, such as by arriving only two seconds late, that would unquestionably constitute a violation of due process. (26) And I do not think that is a controversial way to interpret a statute. That said, four of our colleagues chose Option C, which was to effectively rewrite the statute to make it constitutional. (27) The other two justices and I were very critical of this approach, so we found ourselves in dissent. (28)

Whereas I view the above legal debate as relating to a doctrine of statutory interpretation, Mr. Whelan sees a presumption of constitutionality in favor of the statutory language. Such a presumption enables a situation in which an individual who possesses a right under the Constitution walks into the courtroom, and the government walks into the courtroom, and the scales of justice tilt in favor of the government. (29) Instead of simply interpreting the individual's right against the government power on equal terms, a presumption of the statute's con stitutionality forces the individual to prove what is, in some instances, a metaphysical impossibility. (30)

Another reason judges should never rewrite statutes is for the sake of individual inquiry. If a person wants find and obey the law, she ought to be able to look at a statute and know what it means; she should not have to turn to a judicial decision to see how judges have rewritten words that in fact do not appear in the statute. That is certainly true also when judges invalidate a provision. They do not really remove laws from the books, but declare laws void and hold that they cannot be enforced. (31)

No matter how activist a judge is in policing constitutional boundaries, that judge should never yield to the temptation to exercise legislative or executive powers, lest that judge violate those very same boundaries. But judicial abdication is just as grave as judicial lawlessness, for it eviscerates individual liberties and allows government to grow far beyond its intended powers. (32)

With respect to the other branches of government, how is the judicial power properly bound? It is bound by the constitutional oath that all judges take, and hence, by the words and to the meaning of the Constitution. (33) That means that judges should enforce every provision of the Constitution--the Fourth and Fifth Amendments, just as the First and Second Amendments. There are no ink blots in the Constitution, whether the Ninth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.

An example of unbridled judicial abdication is the judiciary's flawed interpretation of the Fourteenth Amendment. The Fourteenth Amendment marked a radical restructuring of part of our system. In fact, one of the dissenting justices in the Slaughter-House Cases (34) aptly referred to it as a "new Magna Carta"; it was an understanding that the states, despite the assumption that they would be the more reliable guardians of liberty, in many instances were not. (35) And so the intent of the Fourteenth Amendment was to place a floor beneath the rights that are guaranteed by the federal Constitution. (36)

A judicial abomination like the Slaughter-House Cases is not an act of judicial moderation, but a virtual repeal of one of the most important and meaningful...