As we celebrate the 226th birthday of the U.S. Constitution on Tuesday, we should take a moment to think how lucky we are to live in the ongoing experiment in self-government that is the United States and to thank the founders who spent the summer of 1787 trying to put in place a constitution that would endure. The founders gave us a somewhat skeletal document, one that was flexible. As a result, ever since the Constitution was ratified — and even before ratification in the debates that accompanied the struggle to get it ratified — we have been arguing about how we should interpret the document. We even disagree over the extent to which, if at all, it is supposed to be flexible. Most disputes about the meaning wind up before our Supreme Court, and there is disagreement there, not only with regard to the issues presented by particular cases but also over the proper role for a court justice.
This past term of the Supreme Court produced some momentous decisions. To illustrate the difficulty of interpreting the Constitution, let’s consider two of the most significant of them: United States v. Windsor, which struck down the Defense of Marriage Act of 1996, and Shelby County v. Holder, which struck down section five of the Voting Rights Act of 1965. Justice Anthony Kennedy wrote the majority opinion striking down DOMA and was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan — all, except for Kennedy, Democratic appointees. Chief Justice Roberts authored the majority opinion in the voting rights case, and he was joined by Justices Scalia, Kennedy, Thomas and Alito — all Republican appointees.
Much has been written through the years about activist judges; however, the definition of activism is somewhat elusive. I’ve heard both the late Chief Justice Rehnquist and retired Justice Sandra Day O’Connor say that an activist decision is one with which you do not agree. There’s a lot of truth to that, but it’s not very helpful identifying the line beyond which a judge has exceeded his or her proper role. One approach through the years has been to define activist judges as judges who vote to overturn a law passed by the democratically elected legislature. That’s not much help either, since if we apply it to the two cases mentioned above, all the justices were activist in one or the other of them. Kennedy would win the award as most activist since he’s the only one who voted to strike down both laws.
A different definition of activism would cover judicial decisions that implement policy, rather than sticking to strict interpretation. Arguably, according to this definition, judges who decide that marriage should be open to gays as well as non-gays are implementing what they think is good policy. On the other hand, justices who allow states to prohibit gay marriage are doing what they think is good policy. The Supreme Court that struck down major pieces of New Deal legislation in the 1930s was accused of implementing their preferred economic policy: laissez faire. Similarly, justices who voted to uphold New Deal legislation could be accused of implementing their preferred economic policy: government regulation of the economy.
What then of the voting rights decision that eliminated the requirement that specific jurisdictions with histories of racially discriminatory policies get preclearance from the U.S. Justice Department before implementing any change that would affect voting? From the standpoint of deferring to Congress, the Court’s decision striking down section five of the Voting Rights Act came in spite of the fact that the Congress had reauthorized the act just a few years earlier by huge majorities (390-33 in the House and 98-0 in the Senate).
Congress found in lengthy hearings that there were still discriminatory attempts being made against minorities in the jurisdictions subject to the Voting Rights Act’s requirements. The Court’s majority, however, found that the formula used by Congress was out of date, and Roberts mentioned in his opinion that the Court had warned Congress about the problem several years earlier. Since Congress had not acted to fix it, the majority argued it had no choice but to strike it down. But, since Congress did not change the formula, the argument can be made, as Ginsburg did in her strong dissenting opinion, that Congress had ample grounds to conclude that there was still plenty of evidence of voting discrimination in the areas covered by the act. When should the Court substitute its judgment for that of Congress? Those in the majority would argue that they have no choice when Congress is acting unconstitutionally, as it did by requiring only some jurisdictions to get preclearance.
Taking time to think about and debate issues of constitutional interpretation is a worthy way to celebrate the Constitution’s birthday. There is no simple answer to the question as to what is the proper role for a judge when he or she interprets the Constitution. The fact that the debate goes on is good, however, and it helps to prevent the justices from going too far one way or another as they struggle in their ongoing effort to help the Constitution endure. At the same time, a better understanding of the complexity of constitutional interpretation and the leeway that the interpreters have would be healthy for all of us and perhaps produce a more enlightened debate about the role of the judiciary. It might also make those of us who vote pay a little more attention to the types of judges the presidential candidates we vote for would be likely to appoint.
James Todd is a lecturer in politics and earned his Ph.D. in government from the University.
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