Politics and the Roberts Court: A Case Study on Judicial Activism

University of Maryland, College Park Politics and the Roberts Court: A Case Study on Judicial Activism Andrew Podob GVPT331 Law and Society Professor Robert Koulish T.A. Heather Hicks 26 April 2013

Podob 2 The late Alexis de Tocqueville s statement that there is hardly a political question in the United States which does not sooner or later turn into a judicial one emphasizes the relevance of the federal judiciary in everyday matters. The judiciary, in addition to the executive and legislative branches, is a co-equal branch of the federal government. Within the system, each of the three branches must perform checks and balances on the other. The judiciary s responsibility is to assess the constitutionality that is, the requirement of acting in accordance with the Constitution of the United States of laws, statutes, and treaties. The official name for this action is judicial review (Waluchow 2007, 258). Judicial review, not directly written into the Constitution, was institutionalized by the landmark court case Marbury v. Madison in 1803. In the process of judicial review the court carries out statutory construction; the process of interpreting and applying legislation passed by Congress and signed by the President. Through the procedure of statutory construction, a court s ruling may be deemed judicially activist or judicially restraintist. Many do not understand what the terms judicial activism or judicial restraint mean. On political television channels the terms are widely spoken about on a weekly basis, yet may seem vague or easy to misinterpret. According to the politically conservative Heritage Foundation s website, judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law according to its original meaning (Heritage Foundation 2013). Although no other venue defines judicial activism using the same exact wording, judicial activism can near-concretely be defined as when a judge s ruling is based not upon legal foundation, but rather his or her own beliefs and opinions. On the other hand, judicial restraint is defined by David Strauss, the Gerald Ratner Distinguished Professor of Law at the University of Chicago as: at a minimum, restrained judges are careful about not letting their

Podob 3 views of policy or morality displace the law (Strauss 2010, 137). Judicial restraint is also characterized by its respect of stare decisis. The continually used process of judicial review, and the resulting uses of judicial activism and judicial restraint by judges (in this case justices) will be exceedingly referenced in the following paper. For the following paper, the main focus will be the Supreme Court of the United States. Within the sizeable magnitude of the Supreme Court, the main entity of study here will be the Roberts Court, which receives its namesake from Chief Justice John G. Roberts, Jr. The Roberts Court began on October 3, 2005 with the taking of the judicial oath by Chief Justice Roberts and continues to the present. The physical makeup of the court is important to note. Four of the nine justices were appointed by Presidents belonging to the Democratic Party, and five of the nine justices were appointed by Presidents belonging to the Republican Party. The 5-4 split of the court, with Republican-appointed justices in the majority, Democratic-appointed justices in the minority, has defined many of its legal decisions. In many of the Roberts Court s legal decisions, conservative justices embedded judicial activism into their rulings, injecting politics into the Court, making the conservative Roberts Court a repeatedly and repetitively judicially activist court. The first case study of judicial activism on the Roberts Court surrounds the 2010 case Berghuis v. Thompkins. In the case, the Roberts Court applied Constitutional Amendments Five and Six to rule that if a suspect remains silent during police interrogations, that suspect is not invoking his or her right to remain silent in accordance with the court s 1966 decision in Miranda v. Arizona. The Roberts Court s decision, a 5-4 one, was split in a partisan way with conservative (Republican appointed) justices in the majority and liberal (Democrat appointed) justices in the minority. According to Erwin Chemerinsky, the court s decision violated stare

Podob 4 decisis, as well as the decision handed down in Miranda v. Arizona. Chemerinsky writes in the Loyola Law Review that it is impossible to reconcile the Supreme Court s decision in Thompkins with Miranda (Chemerinsky 2011, 881). Within the same paragraph, Chemerinsky lays out his exact justification writing that in Miranda, the Court said that if an interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination (881). The key portion to analyze is the to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. What does the Court s language mean here? To knowingly and intelligently waive privilege against self-incrimination, a suspect usually must use words, or verbatim say they waive privilege against self-incrimination. Chemerinsky then compares the logic of the Miranda to Thompkins, writing: But in Thompkins, the [Roberts] Court said that the government need not show a knowing and intelligent waiver in order to find a suspect s statements admissible (881). Here, the Court clearly states the government no longer needs to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. Either the Roberts Court forgot to consider Miranda v. Arizona in the Thompkins decision, or in the name of judicial activism Miranda v. Arizona was simply ignored. Comparing both rulings side by side, it is recognizable that the Berghuis v. Thompkins decision contradicts the Miranda v. Arizona decision. For this reason the lower courts should have excluded any and all statements Mr. Thompkins may have made, as he did not invoke his rights to remain silent under Miranda v. Arizona. A Roberts Court respectful of precedent should have ruled in Thompkins favor. But the Roberts Court did not respect precedent, and did not rule in Thompkins favor. The Roberts Court s ruling stretches further than Thompkins himself

Podob 5 though. Thompkins creates a strong presumption that confessions are admissible if obtained after questioning unless there has been an explicit invocation of the right to remain silent. This really does turn Miranda upside down Chemerinsky writes (882). Under the Berghuis v. Thompkins decision, if John Doe, who is socially awkward, scared, and very quiet, remains completely silent while being questioned by police, his lack of speaking any words is interpreted as an invocation of his Miranda rights according to the Robert Court. Remaining silent presumes invoking Miranda rights, the Court argues no verbal acknowledgement of understanding would be necessary in the future. A second case study of judicial activism on the Roberts Court surrounds the 2010 case McDonald v. City of Chicago. In the case, the court applied the Due Process Clause of the Fourteenth Amendment to the Constitution to rule that the Second Amendment to the Constitution is applicable to state and local governments. The court s decision resolved many uncertainties surrounding the 2008 case District of Columbia v. Heller, which ruled the Second Amendment to the Constitution protects an individual s right to own a firearm for self-defense purposes. The McDonald decision also represents political activism by the Roberts Court. In the decision, the Roberts Court uses the 2008 Heller decision to undo and defy all previous court decisions surrounding guns from the 1790s until 2008 (875). The silliness and irony of the decision is recognizable. The Roberts Court used the judicially activist 2008 District of Columbia v. Heller decision as legal proof in the McDonald v. City of Chicago decision (874-875). For further clarity, a non-legal example can be: I use the taken-out-of-proportion A to prove that B is true. In his analysis, Erwin Chemerinsky writes that conservatives who for the last several decades have taken a narrow approach to individual liberties and refused to recognize new rights had no difficulty in finding a Second Amendment right of individuals to have

Podob 6 handguns (876). To restate, the Roberts Court had no issue engaging in a so-called political 180 O when it supported the Second Amendment. And others agree with Chemerinsky. Epstein and Martin write that the Justices political preferences over the substantive policy embedded in the law has received considerable attention (Epstein and Martin 2012, 741). The Alliance for Justice, in a 2011 report, concludes that despite their publicly avowed commitment to principles of judicial restraint, the justices have no compunction about overturning precedent to reach a desired result (Alliance for Justice 2011, 4). Overall, the political philosophies and personal opinions of the Roberts Court were embedded in the decision, rendering it activist. A final case study of judicial activism on the Roberts Court, perhaps the most widely known one, surrounds the 2010 case Citizens United v. Federal Election Commission. In the case, the court struck down parts of the Bipartisan Campaign Reform Act of 2002 (more commonly known as the McCain-Feingold Act) ruling that the First Amendment to the Constitution prohibited the federal government from restricting political expenditures by corporations and unions. The Citizens United decision represents activism on the Roberts Court because the Court answered a legal question not before it (Alliance for Justice 2012, 4-6). According to a 2012 Alliance for Justice report on the Roberts Court, In Citizens United v. FEC, the Court was presented with the narrow question of whether the electioneering communications provisions of the McCain- Feingold Act apply to pay-per-view movies made by not-for-profits. But the Court invited reargument on whether to overturn its 1990 and 2003 decisions upholding limits on corporate spending in federal elections (4). By taking one legal question, and using it to answer a separate one, the conservative majority on the Roberts Court engaged in judicial activism. Perhaps an answer to why the court injected politics into its decision surrounds the facts of the case. Citizens United arose out of a conservative political-

Podob 7 action corporation making a video-on-demand movie very critical of then- Democratic presidential candidate Hillary Clinton (Chemerinsky 2011, 868). In siding with the Citizens United group instead of the Federal Elections Commission, the conservative majority on the Roberts Court permitted a conservative interest group to politically attack a liberal candidate in this case Hillary Clinton. Speculate to yourself, as I will not do here, how the conservative majority on the Roberts Court would have ruled if Citizens United was a liberal interest group attacking conservative presidential candidate Hillary Clinton. Furthermore, in the Citizens United v. Federal Election Commission ruling, the Roberts Court defied precedent. Much of the same provision of the McCain-Feingold Bipartisan Campaign Finance Reform Act, that the court upheld in the 2003 case McConnell v. Federal Election Commission, was struck down, and ruled unconstitutional, in the Citizens United ruling (868). In addressing a section of the previously mentioned law, the Rehnquist Court ruled it constitutional in 2003; the Roberts Court ruled it unconstitutional in 2010. In addition, Calvert and Hayes define the Citizens United decision as a rejection of deference to congressional action and rejection of the deference accorded to prior decisions (Calvert and Hayes 2012, 35). Deference means out of respect for and in consideration of. The congressional action Calvert and Hayes refer to is Congress passing of the McCain-Feingold Act while the prior decisions they refer to is the Rehnquist Courts ruling in 2003. Laying both Calvert and Hayes quotes and the explanations together, Calvert and Hayes think that the Roberts Court did not respect Congress passing of the McCain-Feingold Act and the Rehnquist Court s 2003 ruling. After three case studies of judicial activism on the Roberts Court have been thoroughly analyzed, questions about the existence of judicial activism itself remain. Is the Roberts Court secretly cloaking judicial activism in judicial restraint? If so, why? What will being labeled an

Podob 8 activist due, and mean for the Roberts Court? Ultimately, what is wrong with judicial activism? To begin to answer these questions, keeping in mind an entire doctoral dissertation could be devoted to them, I will begin with the last one and work backwards. Answering the question of what is wrong with judicial activism requires many parts. To begin, a judicially activist court is predictably unpredictable. While a court that continues to produce political and judicially activist rulings over and over can be predicted to continue engaging in the same behavior in the future, the exact scope of its activism is unpredictable. The slippery slope analogy is pertinent here. If the Roberts Court oversteps its bounds with respect to Issue X or Law X, what stops the Roberts Court from overstepping its bounds with respect to Issue Y or Law Y? Overstepping bound after bound can lead to judicial abuse. At least one person has commented on that possibility. Congressman Lamar Smith, of Texas, is quoted as saying: Judicial abuse occurs when judges substitute their own political views for the law. By analyzing the Congressman s definition of judicial abuse, and matching it next to the Heritage Foundations definition of judicial activism cited in page one of the essay, both are very similar. Although the Congressman uses the spoken everyday language while the Heritage Foundation uses formal language, their descriptions are strikingly akin. Based upon an evaluation of both, judicial activism is a synonym for, if not the same as, judicial abuse. In addition to the propensity for judicial abuse, judicially activist judges can use the law to reach any decision they desire, appropriate or not. This idea is a main tenet of legal realism. (Holmes Jr. 1897). Within legal realism, a realist judge looks at the law as an instrument. How can the law be used to reach the desired end I want, a judge who adheres to the legal realist philosophy might ask him or herself.

Podob 9 To apply that question to one of the previous case studies, the Citizens United v. Federal Election Commission case, the question would be: What aspects of the law can I utilize to form an opinion in favor of the Citizens United group? Whether or not the justices on the Roberts Court asked themselves the preceding question consciously, subconsciously it was present when the law was used as a tool. In a reaction to the Roberts Court s decision in Citizens United v. Federal Election Commission, Geoffrey Stone writes that the conservative majority is troubling because it is infusing its personal policy preferences into its opinions while at the same time convincing the public that it is acting in a principled manner (Stone 2012, 485). In the excerpt, Stone addresses the question: Is the Roberts Court secretly cloaking judicial activism in judicial restraint? Stone s answer is yes. Stone writes that the conservative majority on the Roberts Court uses judicial activism in a hidden way. When Stone writes that the Roberts Court is at the same time convincing the public that it is acting in a principled manner he means the Roberts Court is trying to convince the public it is ruling in a judicially restraintist manner. Erwin Chemerinsky writes, also referring to the Roberts Court: we are at a time of significant conservative judicial activism; the [Roberts] Court has replaced the deference of twenty years ago with a very different brand of judicial conservatism (Chemerinsky 2011, 867). The different brand of judicial conservatism Chemerinsky refers to can be labeled conservative judicial activism. Compellingly, Justice Oliver Wendell Holmes, Jr. could use Stone s excerpt to critique formalism, the legal formalist s use of the syllogism, and the Roberts Court s use of judicial conservatism. Although Justice Holmes has been deceased since 1935, ideas noted in his works before then can be applied to the Roberts Court presently.

Podob 10 Answering the questions Why is the Roberts Court secretly cloaking judicial activism in restraint? and What will being labeled an activist due, and mean for the Roberts Court? is connected to Justice Holmes critique of formalism and the article by Geoffrey Stone. If the conservative members of the Roberts Court seemingly rule in a judicially restraintist manner, their ruling seems legally formalist in approach. By seeming legally formalist, the court seems more honorable, impartial, unprejudiced, and apolitical. Underneath though, the Roberts Court is activist in nature, using the aura of judicial formalism to hide the substitution of the court s political views for actual law. Overall, the judicial activism of the Roberts Court, as seen in Berghuis v. Thompkins, McDonald v. City of Chicago, and Citizens United v. Federal Election Commission, is unique because it is conservative judicial activism by conservative justices that refer to themselves as restraintist. Previous courts, such as the Warren Court, from 1953 to 1969, were judicially activist courts. But, the Warren Court was a liberal activist court with a liberal majority. The conservative activism of the Roberts Court is unlike ever before. It has occurred in a continual pattern, as the Republican-appointed, conservative members have inserted their political views into Berghuis, McDonald, and Citizens United decisions mindful, all in the same calendar year. Considering the recurrent behavior of conservatives on the Roberts Court, it is fitting what the late Alexis de Tocqueville s once said: there is hardly a political question in the United States which does not sooner or later turn into a judicial one.

Podob 11 References Alliance for Justice. (2011). How the Corporate Court Bends the Law to Favor the 1%. Washington, DC. Alliance for Justice. (2012). The Roberts Court s Record of Overreaching. Washington, DC. Berghuis v. Thompkins, 560 U.S. (2010). Calvert, C., & Hayes, J. B. (2012). To Defer or not to Defer? Deference and its Differential Impact on First Amendment Rights in the Roberts Court. Case Western Reserve Law Review, 63(1). 13-55. Chemerinsky, E. (2011). Supreme Court--October Term 2009 Forward: Conservative Judicial Activism. Loyola Law Review, 44(3), 863-887. Citizens United v. Federal Election Commission, 588 U.S. 310 (2010). Epstein, L., & Martin, A. D. (2012). Is the Roberts Court Especially Activist? A Study of Invalidating (and upholding) Federal, State, and Local Laws. Emory Law Journal, 61(4), 737-758. Holmes Jr., O.W. (1897). The Path of the Law. Harvard Law Review, 10(457), 1-11. Judicial Activism. (2013). Retrieved April 19, 2013, from http://www.heritage.org/initiatives/rule-of-law/judicial-activism Kilkenny, A. (2009, July 13). Every Judge is an Activist Judge. The Huffington Post. Retrieved from http://www.huffingtonpost.com/allison-kilkenny/every-judge-is-anactivis_b_230696.html McDonald v. City of Chicago, 561 U.S. 3025 (2010). Strauss, D. A. (2010). Originalism, Conservatism, and Judicial Restraint. Harvard Journal of Law & Public Policy, 1(34), 137-146.

Podob 12 Stone, J. R. (2012). Citizens United and Conservative Judicial Activism. University of Illinois Law Review, 2012(2), 485-500. Waluchow, W. J. (2007). Judicial Review. Philosophy Compass, 2(2), 258-266.