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2011
Selective Judicial Activism
Geoffrey R. Stone
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Geoffrey R. Stone, "Selective Judicial Activism," 89 Texas Law Review 1423 (2011).
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Selective Judicial Activism
JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel.
Houghton Mifflin Harcourt. 2010. Pp. 688, $35.00.
Geoffrey R. Stone*
When the term "judicial activist" was first coined by Arthur
Schlesinger, Jr. in 1947, it "did not have a derogatory connotation."' By the
time William J. Brennan, Jr. had completed his thirty-four years on the
Supreme Court, the phrase had become a pejorative, implying the
irresponsible exercise of judicial authority.
Critics on and off the Court have vilified Brennan and his liberal
colleagues for their activism. In 1966, the political scientist Robert
McCloskey accused Brennan and his fellow "judicial activists" of creating
"Constitutional rules out of whole cloth."2 Judge Learned Hand complained
that the "judicial activists" on the Supreme Court were acting like "a bevy of
Platonic guardians." 3 Anthony Lewis reported that critics had vehemently
attacked "judicial activists" like Brennan for "taking too much joy" in their
own power and "trying too boldly to fix up the wrongs of our system."4 And
Justice Felix Frankfurter castigated the "judicial activists" for making
decisions on the basis of "'their prejudices and their respective pasts and self-
conscious desires to join Thomas Paine and T. Jefferson in the Valhalla of
"liberty.""'5 To this day, no Supreme Court nominee-not Anthony
Kennedy, not Ruth Bader Ginsburg, not John Roberts, not Elena Kagan-has
dared to describe him or herself as a "judicial activist." Such a self-
characterization would certainly be the kiss of death for any nominee.
* Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I
would like to thank the University of Chicago Law School's Leonard Sorkin Law Faculty Fund for
its generous support of my work and, most especially, Justice William J. Brennan, Jr., for giving me
the extraordinary opportunity to serve as one of his law clerks during the Supreme Court's 1973
Term.
1. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 232 (2010).
2. Id. at 232-33 (quoting Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L.
REV. 1229, 1259 (1965)).
3. Id. at 231 (quoting LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES
LECTURES 1958, at 73 (1958)).
4. Id. at 231 (quoting Anthony Lewis, Supreme Court Moves Again to Exert Its Powerful
Influence, N.Y. TIMES, June 20, 1964, at E3).
5. Id. at 102 (quoting Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter,
William 0. Douglas and the Clash ofPersonalitiesand Philosophieson the United States Supreme
Court, 1988 DUKE L.J. 71, 105 (1988)).
1424 Texas Law Review [Vol. 89:1423
Is the pejorative "judicial activist" warranted? To answer that question,
we must begin with the Court's economic substantive due process decisions
in cases like Lochner v. New York,6 half a century before William Brennan
joined the Court. Lochner and its progeny, which held unconstitutional a
broad range of progressive legislation regulating such matters as maximum
hours and minimum wages, represented a highly controversial form of
conservative judicial activism. Over time, Lochner, the bMte noire of
progressives of that era, came to be "one of the most condemned cases in
United States history."
Critics of the Lochner-era jurisprudence took away two quite distinct
lessons. Some, like Frankfurter, concluded that judicial activism was
presumptively illegitimate and unwarranted. The only principled stance for a
responsible Justice was one of judicial restraint. As Seth Stem and Stephen
Wermiel aptly observe, "Frankfurter believed firmly that judges should act
with restraint and largely defer to the elected branches." 8 Indeed, this was
"something he had preached as a professor at a time when a conservative
Supreme Court was overturning the progressive economic regulations ...
that he favored."9 It was for this reason that Frankfurter was so condemning
of his "judicial activist" colleagues on the Court.
Other critics of Lochner, like Hugo Black, William 0. Douglas, and
William Brennan, took away a very different lesson. In their view, Lochner
was wrong not because judicial activism is wrong, but because Lochner was
not an appropriate case for judicial activism. It was this view that Chief
Justice Harlan Fiske Stone set forth in 1938 in his famous footnote 4 in
United States v. Carolene Products Co.10 While burying the doctrine of
economic substantive due process, Stone at the same time suggested that
"[t]here may be narrower scope for operation of the presumption of
constitutionality when legislation ... restricts those political processes which
can ordinarily be expected to bring about repeal of undesirable legislation,"
or when it discriminates "against discrete and insular minorities" in
circumstances in which it is reasonable to infer that prejudice, intolerance, or
indifference might seriously have curtailed "the operation of those political
processes ordinarily to be relied upon to protect minorities. . . ."l1
It was this conception of selective judicial activism that shaped
Brennan's jurisprudence. It is important to emphasize that, Frankfurter to the
contrary notwithstanding, this view of the judicial role is not necessarily the
product of individual Justices' personal "prejudices" and experiences.
6. 198 U.S. 45 (1905).
7. BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 23 (1980).
8. STERN & WERMIEL, supra note 1, at 101.
9. Id.
10. 304 U.S. 144 (1938).
11. Id. at 152-53 n.4.
2011] Selective Judicial Activism 1425
Rather, it is deeply rooted in the original understanding of the purpose of
judicial review in our system of constitutional governance.
The Framers of our Constitution wrestled with the problem of how to
cabin the dangers of an overbearing or intolerant majority. For example,
those who initially opposed a bill of rights argued that such a list of rights
would serve little, if any, practical purpose, for in a self-governing society
the majority could simply disregard whatever rights might be "guaranteed" in
the Constitution. In the face of strenuous objections from the Anti-
Federalists during the ratification debates, however, it became necessary to
reconsider the issue.
On December 20, 1787, Thomas Jefferson wrote James Madison from
Paris that, after reviewing the proposed Constitution, he regretted "the
omission of a bill of rights."l 2 In response, Madison expressed doubt that a
bill of rights would "provide any check on the passions and interests of the
popular majorities."1 3 He maintained that "experience proves the inefficacy
of a bill of rights on those occasions when its controul is most needed.
Repeated violations of these parchment barriers have been committed by
overbearing majorities in every State" that already had a bill of rights. 14In
such circumstances, he asked, "What use . . . can a bill of rights serve in
popular Governments?""
Jefferson replied, "Your thoughts on the subject of the Declaration of
rights" fail to address one consideration "which has great weight with me, the
legal check which it puts into the hands of the judiciary. This is a body,
which if rendered independent . . . merits great confidence for their learning
& integrity."' 6 This exchange apparently carried some weight with Madison.
On June 8, 1789, Madison proposed a bill of rights to the House of
Representatives. At the outset, he reminded his colleagues that "the greatest
danger" to liberty was found "in the body of the people, operating by the
majority against the minority."' 7 Echoing Jefferson's letter, he stated the
position for judicial review, contending that if these rights are:
incorporated into the constitution, independent tribunals of justice will
consider themselves ... the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the
legislative or executive; they will be naturally led to resist every
12. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), reprinted in JACK N.
RAKOVE, DECLARING RIGHTS: A BRIEF HISTORY WITH DOCUMENTS 154,156 (1998).
13. RAKOVE, supra note 12, at 159.
14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in RAKOVE,
supra note 12, at 160, 161.
15. Id. at 162.
16. Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), reprinted in RAKOVE,
supra note 12, at 165, 165.
17. James Madison, Speech to the House of Representatives (June 8, 1789), reprinted in
RAKOVE, supra note 12 at 170, 177.
1426 Texas Law Review [Vol. 89:1423
encroachment upon rights expressly stipulated for in the constitution
by the declaration of rights.' 8
This reliance on judges, whose lifetime tenure would hopefully insulate
them from the need to curry favor with the governing majority, was central to
the Framers' understanding. Alexander Hamilton, for example, strongly
endorsed judicial review as obvious and uncontroversial. The "independence
of the judges," he reasoned, is "requisite to guard the Constitution and the
rights of individuals from the effects of those ill humours, which ...
sometimes disseminate among the people themselves" Judges, he insisted,
have a duty to resist invasions of constitutional rights even if they are
"instigated by the major voice of the community."l9
It was this "originalist" conception of judicial review that informed
Justice Brennan's selective judicial activism. As a rule, he gave a great deal
of deference to the elected branches of government-except when he felt
such deference would effectively abdicate the responsibility the Framers had
imposed upon the Judiciary to serve as an essential check against the inherent
dangers of democratic majoritarianism. He therefore invoked activist
judicial review primarily in two situations: (1) when the governing majority
systematically disregarded the interests of a historically underrepresented
group (such as blacks, ethnic minorities, political dissidents, religious
dissenters, women, and persons accused of crime), and (2) when there was a
risk that a governing majority was using its authority to stifle its critics,
entrench the status quo, and/or perpetuate its own political power.
Because Brennan played so central a role in crafting many of the key
decisions of the Warren Court, it may be useful to note just a few of those
decisions to illustrate my point. Consider, for example, Brown v. Board of
Education,2 0 which prohibited racial segregation in public schools; Loving v.
21
Virginia, which invalidated laws forbidding interracial marriage; Engel v.
Vitale,22 which prohibited school prayer; Goldberg v. Kelly,2 3 which
guaranteed a hearing before an individual's welfare benefits could be
terminated; Reynolds v. Sims, 24 which guaranteed "one person, one vote";
Miranda v. Arizona,25 which gave effect to the prohibition of compelled self-
incrimination; Gideon v. Wainwright,26 which guaranteed all persons accused
of crime the right to effective assistance of counsel; New York Times v.
18. Id at 179.
19. THE FEDERALIST No. 78 (Alexander Hamilton).
20. 347 U.S. 483 (1954).
21. 388 U.S. I (1967).
22. 370 U.S. 421 (1962).
23. 397 U.S. 254 (1970).
24. 377 U.S. 533 (1964).
25. 384 U.S. 436 (1966).
26. 372 U.S. 335 (1963).
2011] Selective Judicial Activism 1427
Sullivan,27 which limited the ability of public officials to use libel actions to
silence their critics; and Elfbrandt v. Russell,28 which protected the First
Amendment rights of members of the Communist Party. Each of these
decisions clearly reflected the central purpose of judicial review-to guard
against the greatest dangers of majoritarian abuse.29
By definition, antimajoritarian decisions generally do not sit well with
the majority. It is therefore hardly surprising that this jurisprudence excited
biting criticism, especially in the political arena, where candidates curry
favor with that very same majority. By the late 1960s, Richard Nixon was
able to make the Court's "judicial activism" a significant issue in national
politics. During his nomination acceptance speech in 1968, for example, he
insisted that the Court had "gone too far in weakening the peace forces as
against the criminal forces in this country and we must act to restore that
balance." 30 Nixon decried the activism of the Warren Court and pledged to
appoint "strict constructionists" rather than "judicial activists" to the Court.
In the discourse of the time, a strict constructionist was a judge committed to
judicial restraint. In a few short years, Nixon appointed Warren Burger,
Harry Blackmun, Lewis Powell, and William Rehnquist to the Court.
Although these Justices varied over time in their adherence to "strict
constructionism," their presence quickly transformed the Court, leaving
Justice Brennan in the minority for the rest of his tenure.
The change in the Court's role since 1968 has been dramatic. In the
twenty-five years between 1968 and 1993, shortly after Brennan left the
Court, Republican presidents made twelve consecutive appointments to the
Supreme Court. According to research by Lee Epstein, William Landes, and
Richard Posner, in 1968 the average voting record of the five most liberal
Justices (Marshall, Douglas, Brennan, Fortas, and Warren) in civil liberties
cases was .185. (This is on a scale in which .000 is the most liberal and
1.000 is the most conservative.) The swing Justice was Earl Warren, whose
voting record was .263." By 1993, after twelve consecutive Republican
27. 376 U.S. 254 (1964).
28. 384 U.S. 11 (1966).
29. Many of these decisions reflected, indirectly if not directly, the "gravitational pull" of the
quest for racial justice and equality. See Burt Neubome, The Gravitational Pull of Race on the
Warren Court, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript at 9-27) (on file with Texas
Law Review) (arguing that race exercised a strong influence on the Warren Court's federalism,
separation of powers, and First Amendment jurisprudence); HARRY KALVEN, JR., THE NEGRO AND
THE FIRST AMENDMENT 4 (1965) (arguing that recent constitutional decisions relating to race and
free speech challenge the law's prior conceptions of racial equality).
30. Richard M. Nixon, Presidential Nomination Acceptance Speech (Aug. 8, 1968) (transcript
available at http://www.presidency.ucsb.edulws/index.php?pid=25968).
31. See LEE EPSTEIN, WILLIAM M. LANDES AND RICHARD A. POSNER, ARE JUDGES REALISTS?
AN EMPIRICAL STUDY tbl.3-2 (forthcoming HARV. L. REV. 2011); see also Geoffrey R. Stone,
UnderstandingSupreme Court Confirmations, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript
at 21) (on file with Texas Law Review).
1428 Texas Law Review [Vol. 89:1423
appointments, the average voting record of the five most conservative
Justices (Thomas, Rehnquist, Scalia, O'Connor, and Kennedy) was .798, and
the swing Justice, Anthony Kennedy, had a voting record of .695.32 Thus,
the Court majority was roughly as conservative in 1993 as it had been liberal
in 1968. Even more striking, by 1993 the "liberals" on the Court were
almost as conservative as the "conservatives" on the Court in 1968.33
But what does "conservative" mean in the modem era? In Nixon's
time, the term meant a Justice committed to judicial restraint. But beginning
with the Reagan era, this began to change. Justices like Antonin Scalia,
Clarence Thomas, John Roberts, and Samuel Alito are anything but
restrained. Rather, like Justice Brennan, they employ a form of selective
judicial activism. On the one hand, it seems clear that these Justices would
have joined few, if any, of the Warren Court decisions I mentioned earlier.
On the other hand, though, despite all the conservative rhetoric about "strict
constructionism," "originalism," "judicial restraint," and "call[ing] balls and
strikes,"34 these conservative Justices have been just as activist as their liberal
predecessors, but in a wholly different set of cases.
In a series of unmistakably activist decisions, the conservative Justices
have held unconstitutional affirmative action programs,35 gun control
regulations,3 6 limitations on the authority of corporations to spend at will in
the political process,37 restrictions on commercial advertising, 8 laws
prohibiting groups like the Boy Scouts from discriminating on the basis of
sexual orientation,39 federal legislation regulating guns, age discrimination,
32. EPSTEIN ETAL.,supra note 31.
33. The four conservatives in 1968 (Harlan, White, Stewart, and Black) had an average voting
record of .521, whereas the four liberals in 1993 (Stevens, Souter, Blackmun, and White) had an
average voting record of .436. See EPSTEIN, LANDES & POSNER, supra note 31, at tbl.3-2.
34. ConfirmationHearing on the Nomination ofJohn G. Roberts, Jr.to Be ChiefJustice of the
United States: HearingBefore the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of
John G. Roberts, Jr., Supreme Court C.J. Nominee).
35. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747-78 (2007)
(holding unconstitutional an affirmative action program that took race into account when
determining school placement).
36. See McDonald v. City of Chi., 130 S. Ct. 3020, 3050 (2010) (holding that the Second
Amendment is applicable to the states and remanding the case for further proceedings); D.C. v.
Heller, 554 U.S. 570, 595, 635 (2008) (holding that D.C.'s ban on handgun possession in the home
violated the individual right to bear arms conferred by the Second Amendment).
37. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 913 (2010) (holding that
"[t]he First Amendment does not permit Congress to make ... categorical distinctions based on the
corporate identity of the speaker and the content of the political speech").
38. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 376-77 (2002) ("If the Government's
failure to justify its decision to regulate speech were not enough to convince us that the FDAMA's
advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the
FDAMA would be.... [W]e affirm the ... judgment that the speech-related provisions ... are
unconstitutional.").
39. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000) (overturning application of a state
public accommodations law that would have prohibited discrimination based on sexual orientation).
2011] Selective Judicial Activism 1429
the environment, and violence against women, 40 and policies of the State of
Florida relating to the outcome of the 2000 presidential election. 4 1
Nothing about this jurisprudence smacks of "judicial restraint." To the
contrary, it has about it the distinctive air of Platonic guardianship. The
challenge is to figure out what theory of judicial review or constitutional law
drives this particular form of activism. Although one can readily discern the
specific conception of judicial review that undergirds Justice Brennan's use
of judicial activism, which is clearly rooted in the concerns of Jefferson,
Madison, and Hamilton, no similar principle of judicial review or
constitutional methodology explains the jurisprudence of contemporary
conservative judicial activists. To understand Brennan's theory of activist
judicial review, all one needs to do is to look at the results and then ask,
"Why these cases and not others?" If one attempts the same inquiry of the
decisions of the current conservative Justices, however, no principled
explanation emerges for their version of selective activism. Rather, to return
to Justice Frankfurter's ill-tempered observation, the selective activism of
Justices like Scalia, Thomas, Roberts, and Alito seems to be born out of
"'their prejudices and their respective pasts and self-conscious desires to join
[Ronald Reagan and George W. Bush] in the Valhalla of "liberty.""' 4 2 The
point, in other words, is that judicial activism itself is neither inherently good
nor inherently bad. It is a legitimate and essential method of constitutional
interpretation when used in appropriatecircumstances.
I sometimes wonder what constitutional law might look like today if
Justices with the same vision as Justice Brennan had remained a majority on
the Supreme Court over the past forty years. It is not so difficult to imagine
such a state of affairs. Had Hubert Humphrey defeated Richard Nixon,
Jimmy Carter defeated Ronald Reagan, or Al Gore defeated George W.
Bush, the path of constitutional law might have been very different. What is
more difficult to imagine is how constitutional law might have evolved in
that counterfactual universe. It has been so long since there has been a
liberal majority on the Court that it is difficult even to conceive what a liberal
jurisprudence might look like today.
40. See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that "[t]he mandatory
obligation imposed on CLEOs to perform background checks on prospective handgun purchasers
plainly runs afoul of [the law]"); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding
"that the [Age Discrimination in Employment Act] is not a valid exercise of Congress' power");
Solid Waste Agency v. United States Army Corps of Eng'rs, 531 U.S. 159, 174 (2001) (holding a
federal law claiming jurisdiction over ponds and mudflats was unconstitutional); United States v.
Morrison, 529 U.S. 598, 627 (2000) (holding that a federal law dealing with violence against
women was not constitutional).
41. See Bush v. Gore, 531 U.S. 98, 103 (2000) (invalidating Florida's "use of standardless
manual recounts" as violative of the "Equal Protection and Due Process Clauses").
42. STERN & WERMIEL, supra note 1, at 102 (quoting Melvin I. Urofsky, Conflict Among the
Brethren: Felix Frankfurter, William 0. Douglas and the Clash of Personalities and Philosophies
on the United States Supreme Court, 1988 DUKE L.J. 71, 105).
1430 Texas Law Review [Vol. 89:1423
Here are some possibilities: the counterfactual Court might have held,
not that affirmative action is unconstitutional, but that it is sometimes
constitutionally required; it might have held, not that cigarette companies
have a constitutional right to shill their products to children, but that
children have a constitutional right to an adequate and equal education; 44 it
might have held not that silence constitutes waiver of the right to remain
silent, 45 but that individuals accused of a crime have a constitutional right to
DNA testing; it might have held, not that the government can constitutionally
ban partial birth abortions, 4 6 but that it cannot constitutionally ban stem-cell
research in order to enforce the faith-based beliefs of the religious right; it
might have held, not that corporations have a constitutional right to spend
millions to buy the elected representatives of their choice, 47 but that public
officials cannot constitutionally use partisan gerrymandering to ensure their
perpetuation in power; 48 it might have held, not that the Boy Scouts have a
constitutional right to discriminate against gays and lesbians, 4 9 but that gays
and lesbians have a constitutional right to marry.
Constitutional interpretation is not a mechanical, value-free enterprise.
It requires judges to exercise judgment. It calls upon them to consider text,
history, precedent, values, and ever-changing social and cultural conditions.
It requires restraint, wisdom, empathy,50 and intelligence. Perhaps above all,
it requires a recognition of the Judiciary's unique strengths and weaknesses
and a deep and accurate understanding of our nation's most fundamental
constitutional aspirations.
43. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (holding that regulations on
tobacco advertising violate the First Amendment because they fail Central Hudson's four-part
analysis).
44. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54-55 (1973) (holding that the
Texas system of financing public education rationally furthers a legitimate state purpose or interest
and therefore satisfies the Equal Protection Clause).
45. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (holding that unless a suspect
explicitly invoked his Miranda rights he waived them by making voluntary statements and that
police did not have to obtain a waiver of the suspect's Mirandarights before interrogating him).
46. See Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that the Partial-Birth Abortion
Ban Act of 2003 was not unconstitutional on its face).
47. See Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 913 (2010) (holding that
"[tihe First Amendment does not permit Congress to make ... categorical distinctions based on the
corporate identity of the speaker and the content of the political speech").
48. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (holding that "political gerrymandering
claims are nonjusticiable" because there are no "judicially discernable and manageable standards for
adjudicating political gerrymandering claims").
49. See Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) (holding that applying New
Jersey's public accommodations law to require the Boy Scouts to readmit an avowed homosexual
and gay rights activist violated the Boy Scouts' First Amendment right of expressive association).
50. Richard Cotton, one of Justice Brennan's law clerks in the Court's 1972 term, observed that
Brennan "had the ability to see a case through the eyes of the people involved." STERN &
WERMIEL, supra note 1, at 206.
2011] Selective Judicial Activism 1431
As Justice Brennan himself observed, the Supreme "'Court is not a
council of Platonic guardians given the function of deciding our most
difficult and emotional questions according to the Justices' own notions of
what is just or wise or politic.'" 5 Rather, "'our government structure assigns
to the people's elected representatives the function of making policy for
handling the social and economic problems of state and nation"' and "'the
impropriety of a judiciary with life tenure writing its own social and
economic creed into the Constitution is therefore clear."' 5 2 At the same time,
though, Brennan insisted that "'[j]ust as an individual may be untrue to
himself, so may society be untrue to itself."' 5 3 The Court's responsibility in
interpreting and applying the Constitution, he rightly insisted, is to "'keep the
community true to its own fundamental principles."' 54
51. Id. at 233 (quoting Justice William James Brennan, The U.S. Constitution, Speech at
Maxwell Air Force Base (Sept. 9, 1963), reprinted in 2 AIR WAR C. SUPPLEMENT 3, 43).
52. Id. (quoting A Visit with Justice Brennan, LOOK, Dec. 18, 1962).
53. Id at 234 (quoting Justice William James Brennan, Bouton Lecture at Princeton University
(Feb. 4, 1969)).
54. Id.
