THE SUPREME COURT'S MONDAY ORAL ARGUMENT IN GORE V. BUSH, AND THE MEANING OF JUDICIAL ACTIVISM

In the wake of the Supreme Court's oral argument Monday, in a case likely to decide the presidential election, it seems worth taking time out to consider a concept that has been central to the debate over the propriety of the Florida Supreme Court decision under review, as well as of several other recent, election-related court decisions — the concept of "judicial activism."

This phrase is often the first epithet that a losing party employs in an attempt to de-legitimize an adverse court ruling. But is the charge anything more than a nasty political label? Is all activism bad, or is there some way to identify "good" activism?

In my view, there is such a thing as "good" activism. Moreover, as I will argue below, it can be clearly defined.

In modern times, the "activist" label has mainly been the tool of political conservatives, who purport to despise activist decision-making and to favor, instead, what they call "strict constructionism" — that is, narrow interpretation of the law's language.

According to many of the conservatives who use the label, activism is typified by a line of decisions authored by Supreme Court Justices Warren, Brennan, and Marshall in the 1950s, 60s, and 70s — decisions that arguably went beyond the Constitution's text in order to craft strong protections for criminal defendants, and to establish an aggressive jurisprudence of voting rights and affirmative action. By contrast, conservatives define strict constructionism as an attempt to divine the true meaning of the words of the Constitution, or of federal or state statutes or regulations, without going beyond the text of these documents as they claim the Warren Court often did.

Liberals, of course, view matters quite differently. When they speak of activism, it is in praise of the judicial courage that brought us cases such as Brown v. Board of Education, or in praise of Warren Court criminal procedure protections. Moreover, strict construction, to them, is an absurd form of legal fundamentalism — one that even Justice Scalia, in his book A Matter of Interpretation, denounces as a "degraded" form of jurisprudence.

For example, I think it fair to say that a Court decision that overturns prior precedent is "activist." In such a decision, by overruling past precedent rather than passively accepting it, the Court has decided to break with the past, and to create a somewhat altered legal landscape for the future.

The same goes for decisions of the Court that are "activist" not in the sense that they overturn prior Court precedent, but in the sense that they overturn acts of the legislature. In such decisions, the Court is making a conscious decision to declare that a co-equal branch of the government has overstepped its authority. Such rulings have the inevitable effect of substituting the judgment of nine unelected, life-tenured persons for the judgment of the people's elected representatives. Surely, this is "activist." But it is not necessarily a bad thing.

If activist decisions are defined as those that overturn prior Court precedents or that overturn legislation, then most everyone could easily come up with a "good" activist decision and a "bad" one.

For example, most of us would probably agree that Brown v. Board of Education was a good activist decision. It overturned both precedent and countless laws, but it was deeply grounded in the text of the Constitution and the felt necessities of the time. At the other extreme, Dred Scott remains an obvious example of "bad" activism — a decision that overturned the Compromise of 1850, an important legislative act, using highly suspect legal doctrines in the service of an immoral cause, and that also drove the country towards war in the bargain.

The real question is whether there is a way to distinguish between appropriate and inappropriate activism. And in my view, that inquiry boils down to the issue of legitimacy: Has the Court been true to its proper governmental role?

The Supreme Court's very raison d'etre is the notion that it is engaged in a type of decision making different from, and in some sense superior to, that of the political branches of government. That is why we give the Court the authority to decide not just important legal issues, but, in the end, also many of the most divisive moral, social, and political issues of our time. Yet if the Court consistently abandons it proper modes of adjudication and role within our system of government, then it has betrayed its reason to be — and has not only broken its faith with the people it serves, but also surrendered its claim to legitimacy.

Accordingly, whether a decision reflects good or bad activism depends on whether the Court is abiding by principles of decision making that confirm, rather than detract from, its legitimacy.

On this score, one must hope that the U.S. Supreme Court does not split 5-4 along predictable, ideological lines in resolving the case argued Monday — with the result that a conservative majority reverses the Florida Supreme Court. In the U.S. Supreme Court's previous decision concerning this election, it managed to act unanimously, 9-0, and avoid this type of stark, partisan divide. Let us hope it can do so again.

Already, the U.S. Supreme Court has invited charges of partisanship by staying the recount ordered by the Florida Supreme Court. In issuing the stay, the U.S. Supreme Court found, for the first time in its history, that a solely political harm — in this case the harm to George W. Bush if Gore started receiving more recount votes — could constitute irreparable harm in the legal sense.

While Gore's increasing vote totals might have been a public relations disaster for Bush, traditionally public relations problems are not the type that can be raised in Court. Moreover, this ruling simply makes no sense unless one presupposes that Bush was the rightful winner of the election; if Gore properly won the election, the public relations shift would be a benefit, not a harm, at all.

The five conservative Justices (Rehnquist, Scalia, Thomas, O'Connor, Kennedy), who repeatedly champion "states' rights," will substantially compound this reputational disaster if they decide to second-guess the judgment of a state supreme court in its interpretation of state law. If the conservative Justices fail to support the Florida Supreme Court in this respect, then their repeated invocation, in past cases, of the states' special competence in interpreting their own law — a competence with which federal courts should not interfere, according to these Justices — will seem to have been merely opportunistic and results-oriented. Advocating states' rights often leads to conservative results; here, it would lead to a liberal one. If the five Justices truly believe in states' rights, they should be willing to live with that.

Even before this case, it has been the view of the four more liberal Justices (Stevens, Souter, Breyer, and Ginsburg) that the conservatives have been pushing a radical states' rights agenda, with little regard for jurisprudential principle. An intellectual flip-flop in this case by the conservatives could create a civil war within the Court. And that is the kind of activism that both the Court and the country would be much better off without.

Finally, a prediction in light of today's oral argument: Perhaps it is wishful thinking, but Justice David Souter appears to be orchestrating a redux of the three-Justice coalition that saved the Court from bad activism in Planned Parenthood of Southeastern Pennsylvania v. Casey. There, Justice Souter found a middle ground, along with Justices Sandra Day O'Connor and Anthony Kennedy, that allowed the Court as a whole to preserve the core of Roe v. Wade while trimming around the edges. This three-Justice coalition (joined, in its result, by two liberal Justices) prevented the Court from delegitimizing itself by retracting, on ideological grounds, a decision upon which women had relied for decades.

Such a ruling might have difficulty withstanding analytic scrutiny. (For one thing, it would at least arguably import a federal standard into state election law). But it would once again, as Casey did, spare the Court from the otherwise seemingly inescapable prospect of an extremely deep self-inflicted wound.