The Supreme Court’s recent decision regarding corporate spending on political advocacy—Citizens United v. Federal Election Commission—provoked
the widespread renewal of a longstanding liberal complaint: namely,
that the conservative critique of judicial activism is mere hypocrisy.
In this case, it was suggested, conservative justices, applauded by
conservative commentators, struck down a democratically enacted law and
overturned long established judicial precedents. Surely, the argument
runs, this is judicial activism, and surely it reveals the critique of
judicial activism as just a convenient tool by which conservatives
decry decisions to which they object for political reasons, cloaking
their real concerns in feigned constitutional principles.

Though common, this charge of hypocrisy sheds little real light on
the questions in relation to which it is invoked, for several reasons.
First, it does nothing to help us determine the relative merits of the
liberal and conservative positions with regard to the proper exercise
of the judicial power. After all, the charge clearly cuts both ways. In
regard to Citizens United, liberals have complained not only
about conservative inconsistency on the matter of judicial activism,
but also about the supposed activism of the decision itself. Thus
conservatives might well ask these liberal critics: where was your hot indignation about judicial activism when the Court, as recently as nineteen months ago, issued its ruling in Boumediene v. Bush?
In that case, the Court, to widespread liberal acclaim, reinterpreted
key precedents and struck down Congressional enactments on the basis of
a hitherto unknown right of alien enemy combatants to habeas corpus review. Liberals no less than conservatives, it seems, can be charged with a selective opposition to judicial activism.

Second, charges of inconsistency regarding judicial activism are
often unhelpful because they routinely use the term too loosely—that
is, without reference to the merits of the specific constitutional
arguments in question. When the Court strikes down a law or overturns
precedent, those who disagree with the ruling will generally complain
of judicial activism. Yet it is agreed on all sides in American
politics that it is sometimes perfectly appropriate for the Court to
strike down laws or overturn precedents. After all, from the beginning
of the American republic it has been understood that the exercise of
judicial review is an inescapable part of the Court’s function, and
judicial review is inseparable from the possibility of declaring
unconstitutional laws void and erroneous precedents inoperative. If
judicial activism is to have any useful meaning, then, it will have to
be understood as the exercise of judicial review in a way that is not
warranted by the Constitution. The purpose of judicial review, however,
is to safeguard and enforce the law of the Constitution. Judicial
activism, therefore, is best understood not as the striking down of
laws or reversing of precedents—both of which may be required by the
Court’s duty in a particular case—but as the substitution of the
Court’s political, policy, or moral judgments for the requirements of
the law and the Constitution. On this understanding, it is worth
observing, the Court could engage in judicial activism even when upholding a law or precedent, if it does so contrary to the clear meaning of the Constitution.

This brings us, in the third place, to a deeper problem: loosely
framed charges of judicial activism, flung selectively by both
conservatives and liberals, tend to obscure the disturbing extent to
which much of the modern Supreme Court’s jurisprudence is itself a
product of and a continuing invitation to a problematic judicial
activism in the precise sense noted above. That is, the intellectual
framework that all the justices, left and right, have inherited, and
within which they think they must work, arose from and invites the
substitution of their moral and political convictions for the law of
the Constitution.

This problem is evident in the Court’s opinion in the Citizens United
case, whether or not one agrees with its ruling. In deciding the
question before them, the majority had recourse not only to the
Constitution, but also to a Court-created judicial doctrine known as
“strict scrutiny.” Strict scrutiny is ordinarily applied to laws that
(among other things) impose on what the Court regards as “fundamental
rights”—such as, in Citizens United, the freedom of speech.
The test reverses the usual presumption of constitutionality. That is,
when strict scrutiny is invoked, the burden of proof is not on the
litigant challenging the law to demonstrate its unconstitutionality,
but on the government to justify its constitutional legitimacy. Despite
weighting the scales against such laws, strict scrutiny further
stipulates that they can be upheld if they serve a “compelling
governmental interest” by the “least restrictive means.” In other
words, a law may constitutionally intrude on a fundamental right, if it
is necessary to serve some important objective and there is no other
way to do so that is less of an intrusion.

Strict scrutiny, however, is itself a product of judicial activism
understood as the substitution of the opinions of judges for the
requirements of the Constitution. As Justice Felix Frankfurter—one of
the Supreme Court’s great defenders of judicial restraint—pointed out
when the elements of the strict scrutiny test first began to emerge in
the mid-twentieth century, there is nothing in the Constitution on the
basis of which an impartial reader could conclude that some kinds of
laws are entitled to a presumption of constitutionality while others
are not. There is, in fact, nothing in the Constitution to suggest that
some governmental objectives are more “compelling” than others, or that
some rights are more “fundamental” than others. Such categories were
utterly unheard of in American constitutional jurisprudence during the
nation’s first century and a half. They were unknown to Chief Justice
Marshall, and even to zealous judicial defenders of rights in the early
decades following the ratification of the Fourteenth Amendment. These
concepts are not requirements of the Constitution but the inventions of
judges seeking to guide the Court to outcomes they approved on
non-constitutional grounds—namely, their own assessment of what would
be good and just.

A product of judicial activism, strict scrutiny is also an
invitation to ongoing judicial activism. Most obviously, its
abandonment of the traditional presumption of constitutionality gives
the Court much greater freedom to strike down laws that have been
approved by majorities of the people’s representatives. Perhaps more
important, by requiring the Court to ask questions to which the
Constitution provides no answers, strict scrutiny calls judges to
substitute their own convictions for those of legislators. What counts
as a compelling governmental interest? The Constitution, again, is
silent on this question. The answer is not a matter of constitutional
law but of political philosophy. Some people think that the promotion
of greater economic equality is a compelling governmental interest,
while others do not. Some people think that the fostering of
traditional sexual morality is a compelling governmental interest,
which others would deny. Such disputes are subject to more or less
plausible philosophic reasoning, but not to constitutionally conclusive
reasoning. When a Court overturns a law based on arguments that are not
constitutionally compelling, however, it has not vindicated the
Constitution but simply decided to prefer what seems reasonable to it
over what seemed reasonable to legislators. It has, in other words,
engaged in judicial activism.

Nor is it the case, as some might contend, that the Court could find
clear guidance on what constitutes a compelling governmental interest
by looking not to its members’ convictions but to the dominant
practices and values of contemporary society. The very fact that cases
arise in which the parties contend over what is a compelling
governmental interest shows that society is characterized as much by
division as by agreement on such questions. And when the Court decides
to side with one understanding over another without a constitutional
reason to do so, it has again engaged in what can plausibly be called
judicial activism.

None of this is necessarily to say that the Supreme Court erred in its decision in Citizens United.
The case involved a law that regulated political speech. Accordingly,
even dispensing with strict scrutiny, a Court could reasonably conclude
that while such a law is entitled, like any other, to a presumption of
constitutionality, that presumption is here overcome by the law’s
infringement on a freedom expressly enshrined in the text of the
Constitution. My point is that, even if Citizens United was
correctly decided, the use of tests like strict scrutiny, now deeply
entrenched in the Court’s jurisprudence, drive the Court into kinds of
inquiries that almost inevitably make even the most sincere critics of
judicial activism engage in it themselves.

Judicial activism is a problem of profound significance for the
American republic. By relying on the opinions of judges instead of
principles grounded in the constitution, it represents a denial of the
rule of law that was the very purpose of the Constitution. More than
that, because the concepts essential to modern judicial activism are so
pliable, and because the composition of the Court changes so regularly,
judicial activism turns out to be incompatible with the rule of law in
any sense. The Court’s jurisprudence becomes instead a record of ad hoc
approvals and disapprovals on the basis of which no clear predictions
of future rulings is possible, a set of arbitrary judgments that is the
opposite of the rule of law. If this very real and serious problem is
to be addressed, our concerns about judicial activism will have to
become more than just rhetorical weapons wielded when politically
convenient. We will instead have to reconsider the role the Court has
assumed for itself over the last half century or more.

Carson Holloway is an Associate Professor of Political Science at
the University of Nebraska at Omaha. He is the author most recently of
The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Carson Holloway

Carson Holloway is a professor of Political Science at the University of Nebraska Omaha (UNO), where he has taught since 2002. He received a B.A. In political science from the University of Northern Iowa...