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Defining the dimensions of

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236

Judicature Volume 66, Number 6 December-January,1983

-n"

idicial activism
Discussions of judicial activism usually leave the term ill-defined.
But this author identifies six specific elements that give general
structure to the concept.

by Bradley C. Canon
dom address the basic question of

what constitutes judicial activism


itself.
In 1972
a book
came out
iscussions
of judicial
activism
selthat illustrated well this point.' The contributors were 18 judges and scholars, including
such prominent ones as justices Robert Jack-

Portions of this article are excerpted by permission of the


publisher from the author's work, A Framework for the
Analysis of Judicial Activism, in Halpern and Lamb,
SUPREME COURT

AcTVISM

AND

RESTRAINT (Lexington,

Mass.: Lexington Books, 1982). Work on this article was


supported by a Minor Grant from Project '87, for which I
am grateful.
1. Forte, ed., THE SUPREME COURT IN AMERICAN
POLITICS:

JUDICIAL ACTIVISM VS. JUDICIAL

RESTRAINT

(Lexington, Mass.: D.C. Heath, 1972).


2. Political scientist Glendon Schubert said, "The
Court isactivist when its decisions conflict with thoseof
other political policymakers." Id., at 17.

son and the younger John Marshall Harlan,


judges Learned Hand and J. Skelly Wright,
and professors Alexander Bickel, Philip Kurland, and Herbert Wechsler. With one exception, none of the authors even tried to define
judicial activism precisely.2 At best readers
could infer only a general conception of it
without any framework or boundaries. Most
recent essays into judicial activism suffer similarly: the term judicial activism is used without clarity. Moreover, even when someone
does define it, the effort is usually ignored by
all other commentators.
Much of the discussion about judicial activism is implicitly ideological, and that is a
problem. Judicial activism is often equated
with political liberalism, and restraint with
conservatism. The Warren Court is widely

equated with 0both


activist jurisprudence and
liberal results. The critics who have called for
restraints on the federal courts have almost
always been conservatives. But it was not
always this way.
Classic discussion of activism focused on
the nullification of liberal legislation by conservative justices, oron the invention or contortion of common law principles to protect
wealth from severe damagejudgments. In the
constitutional crisis of 1936-1937, it was the
New Deal liberals who argued for judicial
restraint and the Old Guard conservatives
who championed the role of the federal courts
in shaping public policy. Today the ideological shift may be coming full circle. Currently
some liberals accuse the Burger Court of activism by bltnting or dismantling many of the
holdings of the Warren Court. 3 Laissez-faire
critics of the post-1937 Court engaged in
essentially the same shift.
More importantly, however, many commentators have considerably different concerns
when they discuss judicial activism, concerns
that often reflect whatever the courts are
doing at the time. Thus in the New Deal era

Attorney General (and later Justice) Robert


Jackson and historian Henry Steele Commager focused on the judicial usurption of
majority rule in their analysis of activism.' A
similar but narrower focus prevailed in the
1940s and 1950s as the Supreme Court followed the "preferred position" doctrine
(broad construction of the First and Fourteenth amendments) in the wake of Justice
Harlan E Stone's famous Carolene Products
footnote.' justice Felix Frankfurte, judge
Learned Hand, and scholar Wallace Mendelson aimed their criticisms at this so-called
"libertarian activism." 6
When the Warren Court began overruling
longstanding legal doctrines or important
precedents, criticism of activism shifted again.
The courts' unwillingness to maintain continuity, precedent, or "neutral principles"
was criticized. 7 Similarly, contemporary critics such as Raoul Berger, echoed by Justice
William Rehnquist and in his own way by
the late Justice Hugo Black, have reacted to
the Supreme Court's expanded substantive
interpretation of such constitutional provi238

Judicature

Volume 66, Number 6

sions as the First and Fourteenth Amendment


by equating activism with the Court's failure
to abide by the words of these provisions or
8
the intentions of their drafters.
Also in recent years scholars such as Donald
Horowitz and Nathan Glazer have challenged
the courts' initiation of complicated and
often far-reaching policy changes, which
sometimes involve the virtual day-to-day
supervision of school systems, prisons, hospitals, and other institutions.9 Their version of
activism exists when courts act beyond their
capacities and expertise. Finally, some decry
the courts politicization. Legal scholars such
as Bickel and Kurland argue in terms of both
comity and capacity that the courts should
refrain from resolvingdisputes in those issues
areas where the other branches of government
have the authority and ability to do so."0
Two factors undergird this variety of approaches. First, judicial activism is often seen
as a significant court-generated change in
public policy. The court is literally active in
public policy. When a court strikes down laws
or overrules precedents or institutes crosstown busing or prison reforms, it by defini3.Goldman, In Defense of Justice, 29 J. POL. 148-158

(1977).
4. Jackson, TitE STrUc,c.LE

FOR JUDICIAL SUPREMACY

(New York: Knopf. 1941); Commager, MAJORITY Rut.F


AND MINORI Iy Rmtriis (New York: Oxfoid University

Press, 19't3).
5. tnited States v. Caholeie Prods. 30'4 U.S. 144, at
152-53 (1938).
6. See Frankfurter's dissent in west Virginia Bd. of
Edu(c. v. Bau'tte 319 ITS. 624) 19't3): t-and."IiFE B.iioF"
RI.ii'S (Cailridg,, Mass.: Harvard linikersity Press,
1958): MCIdcllso. "TiH SUPREMF COURT: LAW ANt) DisCRE ION (IndiUnapolis, Iln.: Bobbs-Merrill, 1967).

7. Wchh'liei. Toward Neutral Principles of Constitutional Lat, 73 HARV. I. Rv. 1-35 (1959); and i-hnkin,

Some Reflections on Current Constitutional Controversies, 109 I. PA. .. Rvv. 637-662 (1961).
8. Berge% GOVERNMFNT Bv JUDICIARY (Camrhiidge,

Mass.: Harvard Univet'sity Piess., 1977); Rehnquisi. The


Notion of a Living Constitution, 5'lTEx., REV.693-709
(1976). See Itistic Bl ack's dissent in Kaizvv. Inited Staies.
389 1I.S. 347 (1967).
9. Horowitz, THE COURTS AND SOCIAL POtLIcY (Wash-

ington, D.C.: The Brookings Inslitutte, 1977); Glazer,


Should Judges Administer Social Services, 50 PUe
INTrns'i 64-80 (1979).
10. Bit'kcl, THE SUPREME COURT AND Tiit IDEA OF

PROGRESS (New 'York: tHtarpetr - Row, 1970), and TiE


MORAITY OF CONSENT (New H-lavei: Yah' Universit
Press, 1975); Kurland. POt.ITICS, TH CONSTITUTION AND
TE WARREN COURT (Chicago: University of Chicago

Press, 1970).

December-January, 1983

tion changes public policy. The second factor


is illegitimacy. An activist decision is one
perceived as illegitimate in terms of one or
more commonly articulated beliefs about the
,roper role of thejudiciary, and especially the
Supreme Court, in the American constitutional system.
If commentators have numerous and disparate concepts of activism and do not articulate them very well, serious general use of the
term becomes difficult if not meaningless.
Overall, we receive little more than a babel of
loosely connected discussion; the utility of
any particular idea is limited. Those wanting
to understand the discussion are left pretty
much to their own devices.
I will not presume to propose a definitive

Disparate and poorly


articulated concepts of
activism make serious
use of the term difficult
if not meaningless.

meaning of judicial activism. I doubt that I

could fashion one that would include in a


meaningful way all of the focuses noted
above. What I will do is try to give some
general structure to the concept. I have identified and elaborated on six separate dimensions of judicial activism. These dimensions
correspond roughly with the focuses noted
above. I have derived them from a review of
both the polemical and evaluative literature
pertaining to judicial activism, including
some literature that does not use the term
itself, but in which the underlying factors of
policy change or illegitimate authority are
clearly evident."
Six dimensions of activism
The six dimensions are described very briefly
here and will be spelled out in detail below.
(1) Majoritarianism-the degree to which
policies adopted through democratic processes are judicially negated.
(2) Interpretive Stability-the degree to
which earlier court decisions, doctrines, or
interpretations are altered.
(3) Interpretive Fidelity-the degree to
which constitutional provisions are interpreted contrary to the clear intentions of their
drafters or the clear implications of the language used.
(4) Substance/Democratic Process Distinction-the degree to which judicial decisions
II. Supra n. 6-10.

make substantive policy rather than affect the


preservation of democratic political processes.
(5) Specificity of Policy-the degree to
which a judicial decision establishes policy
itself as opposed to leaving discretion to other
agencies or individuals.
(6) Availability of an Alternate Policymaker
-the degree to which a judicial decision
supersedes serious consideration of the same
problem by other governmental agencies.
In developing these dimensions I tried to
impose some objective boundaries so that
particular cases can be described as either
activist or non-activist under each dimension's criteria. Obviously, there are limits to
this in practice. Not everyone will agree with
all my illustrative classifications. The important thing, I think, is not to agree completely
on how every case should be classified, but to
agree on the essential nature of the approaches
to activism.
Also, I have made no effort to control for
what might be called the intensity of activism
on any of these dimensions. For example, a
decision wiping out laws prohibiting abortion throughout the nation will generate
more frequent and intense discussion than
will one striking down a law in one state that

mandates license plate mottos. But both are


equally activist in the sense that they overturn
policies adopted by legislative majorities. I
have made no formal attempt to differentiate
12
them.
A word of caution here. More often than
not, activism is a pejorative term. The norm
in our system is that courts do not make policy, but rather that they merely implement
policies inherent in the Constitution and statutes. We all realize that strict adherence to
this norm is virtually impossible, but the
norm's existence itself makes the concept of
judicial activism suspect. Thus, only a few
judges, such as Skelly Wright, admit to being
activists. 3 From Justice Owen Roberts to
Judge Frank Johnson, most simply insist
they are applying a clear constitutional mandate to the situation at hand. 4 Legal scholars
are much more open about the existence of
activism. For many of them, however, activist
decisions are an inviting target for critical
analysis. Articles supportive of admittedly
activist decisions usually take on a defensive
or even apologetic tone. In this essay, however, I do not treat activism as a pathology. I
neither condemn nor defend it. It is simply a
fact of judicial life.
I limit the ensuing discussion of the six
dimensions to the activism of the U.S. Supreme Court in its development of constitutional law. While the concept of activism certainly applies to the construction of statutes,
the development of common law, and other
judicial doctrines, constitutional law lies at
the heart of the controversy and produces the
sharpest and most memorable colloquy.
Majoritarianism
Majoritarianism is probably the most frequent criterion used in assessing Supreme
Court activism. It suggests that when the
Court exercises judicial review, it substitutes
another public policy for that enacted by
elected representatives in Congress, state legislatures, or city councils. Such action is often
seen as illegitimate from the perspective of
democratic theory.
The violation of majoritarianism is most
pronounced when the Court declares an act of
Congress unconstitutional. Elected from
240

Judicature Volume 66, Number 6

Majoritarianists suggest
that substituting judicial
for legislative policy
is illegitimate
in a democracy.

throughout the nation, Congress constitutes


a coordinate branch of the federal government. The justices have voided congressional
legislation an average of once a year since the
Civil War, with the average approaching
twice a year in the last two decades. Some such
decisions strike down provisions having only
local application or ones of little real importance, but numerous major congressional
policies have also been voided. Dred Scott 5
and the several decisions striking down New
Deal policies in the 1930s provoked constitutional crises of the first magnitude. Three
judicial overrulings generated amendments
to the Constitution. 6 Two others induced a
serious attempt to write an overruling amendment into the Constitution. 7 Beyond these
12. 1 do differentiate levels of activism in a longer
work, A Framework for the Analysis of Judicial Activism, in Halpern and lIam, eds., SUPREME COURT ACTIVISM AND RESTRAINT 385-419 (Lexington, Mass.: Lexington Books, 1982).

13. Wright, The Role of the Supreme Court in a


Democratic Society-J udicial Activism or Restraint, 54
CORNELL L. REV. 1-28 (1968).
14. See Justice Rolerts' famous "squaring" statement
in United States v. Butler, 297 U.S. 1, at 62-63 (1936).
Johnson, The Role of theJudiciaryWith Respect to the
Other Branches of Government, in Murphy and Prircherr, eds., CoURrs, JUDGES AND POLITCS, 3rd ed., 66-71
(New York: Random House, 1979).
15. Dred Scott v. Sanford, 19 How. 393 (1857).
16. Dred Scott was repudiated by the Fourteenrh
Amendment: Pollock v. Farmers' Loan and Trust Co.,
157 U.S. 429 (1895), was overturned by the Sixteenth
Amendment; and Oregon v. Mitchell, 400 U.S. 112(1970),
led to the Twenty-sixth Amendment, setting the minimum voting age at 18.
17. Hammer v. Dagenhart, 247 U.S. 251 (1918), and

Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), led


Congress to pass the Child Labor Amendment in 1924,
but it was never ratified by three-fourths of the states.

December-January,1983

cases, it is easy to point to a number of others


that have voided acts of Congress and which
subsequently received widespread public and
scholarly criticism.
The majoritarian dimension also includes
Supreme Court nullification of state laws,
state constitutional provisions, and local ordinances. Such voidings arguably are less offensive in principle. A federal system requires
some mechanism for reviewing local legislation in order to retain federal supremacy in
specified areas. The U.S. judiciary does this,
and it is too late in the game to rethink that
selection. Nonetheless, the nullification of
local laws arguably violates our commitments
to majority rule and federalism, especially
when the laws involved are not patently
unconstitutional. Further, striking down
some state laws can have a profound national
impact. Criticism following Abington Township v. Schempp, on school prayer,'8 or Roe v.
Wade 9 has far exceeded that from any recent
nullification of any federal law and has generated strong and continuing efforts to amend
the Constitution.

Interpretive stability
This dimension measures the degree to which
a Supreme Court decision either retains or
abandons precedent or existing judicial doctrine. Interpretive stability is an important
element in the debate over the merits of activism, although it is often unrecognized as
such and its components are often poorly
articulated. Discussion of the Warren Court's
activism probably focused more on the fre18. 374 tUI.S. 203 (1963).
19. 410 U.S. 113 (1973).
20. 367 t1.S. 643 (1962).

21. 38,l I.S. 436 (1966).


22. 376 U.S. 254 (1964).
23. 369 U.S. 186 (1962).
24. 347 U.S. '183 (1954).
25. 426 t.S. 833 (1976). Usury alsoovertutned congressional Iegislation, a 1974 ainendmeni to the Fair Labor
Standards Act extending the minimum wage to stat cand
nicipal nlployees.

26. West Coast Hotel Co. v.Parrish, 300 I.S. 379, at '100
(1937).
27. 347 UJ.S. '183, at 494-95 (1954). Plessy v. FergLson,
163 1I.S. 537 (1896) was ovetiled.

28. 418 U.S. 323 (197'4).


29. 403 U.S. 29 (1971).
30. United States v. Reidel, 402 U.S. 351 (1971).

quency and scope of its radical alterations of


prior jurisprudence than on the anti-majoritarian nature of its decisions. Many of its most
memorable cases, Mapp v. Ohio,20 Mirandav.

22
Arizona,2' and New York Times v. Sullivan,
to name a few, nullified no statute or ordinance but simply overturned precedent, common law doctrine, or old understandings
about the Constitution. Moreover, some decisions that voided legislation faced even greater
criticism because they also overruled precedent: Baker v. Carr2 and Brown v. Board of
Education,24 are cases in point. Nor is the
Warren Court the sole exemplar of interpretive instability. The Burger Court is sometimes similarly criticized for its decisions restricting or overturning Warren Court doctrines, for example, National League of Cities
v. Usury.25 And the post-1937 Court was seen
as activist by many for its decisions legitimizing New Deal legislation, which sometimes
overruled or emasculated the doctrines of
freedom of contract, substantive due process,
and dual federalism.
The most visible and dramatic instance of
interpretive instability comes when the Court
explicitly overrules one of its own earlier
decisions. Usually the Court is straightforward about it, for example, "Our conclusion
is that the case of Adkins v. Children'sHospi26
tal, supra, should be, and it is, overruled.'
Occasionally it is indirect, as in the Brown v.
Board phrasing, "any language in Plessy v.
Ferguson contrary to this finding is rejected."2 7 Few failed, however, to appreciate
that Plessy had been overruled.
The Court can also drastically weaken a
precedent without formally overruling it. Of
course, over time we expect that future decisions may put some limits on a precedent's
applicability. The clarification and development of precedent are the woof and warp of
judicial business and such cases hardly constitute activism. But when a precedent is drastically weakened by a single subsequent decision that greatly restricts its scope or seriously
compromises its logic, the ideal of interpretive stability is weakened. For example, Gertz
v. Welch28 significantly altered the concept of
a "public person" as set forth in Rosenbloom
v. Metromedia,9 and the Reidel3 and Twelve

Can the Court


misconstrue the
Constitution? Can the
Pope espouse heresy?

Interpretive fidelity

]
Reels31 cases almost totally undermined th .e
logic and practical utility of Stanley v. Georrgia,3 2 protecting private possession of porn( graphy.
Precedent can be enhanced as well as resstricted. Again, some growth in scope and reaasoning naturally occurs. However, on occaasion the Court will expand precedent by a
virtual quantum leap-by applying it to a
new legal area or giving it hitherto unfor eseen or rejected implications, for exampl e,
3
Frontiero's"
reliance on Boiling v. Sharpe,34
or Collector v. Day35 as a new application c)f
McCulloch v. Maryland 36.
Interpretive stability need not be measure d
against precedent. Another baseline is what I
will call "ongoing interpretation" of th e
Constitution. Ongoing interpretation is a n
inferential interpretation of constitutiona Il
meaning drawn from longstanding and/o ir
widespread laws or practices. No specifi c
Supreme Court precedents directly sUpporrt
such an interpretation, although such sur
port may exist at other levels. For instanc
from 1791 forward virtually everyone assume d
that obscenity was not protected by the Firsst
Amendment and acted accordingly; the asSsumption that tax exemptions for ecclesiast lcally owned property did not violate th e
establishment clause is similarly ancien t.
Only after a century and a half of ongoin g
interpretation did the Court affirm thes e
assumptions. 7 However, the constitutionallity of such practice is not always affirmecI].
Recently the Court has deemed unconstitu
tional some longstanding practices such a 0l
the "spoils system" 38 and state-enforced re
39
strictions on advertising by professionals, t
242

Judicature Volume 66, Number 6

say nothing of its decisions in Abington


Township v. Schempp, concerning school
prayer, and Roe v. Wade.

This dimension measures the Court's actual


or inferential construction of provisions of
the Constitution. Activism occurs when an
interpretation does not accord with the ordinary meaning of wording of the provision
and/or with the known, consensual intentions or goals of its drafters.
If the Supreme Court has primary responsibility for interpreting the Constitution's
provisions, how then, we might wonder, can
the Court misconstrue that document? It is
analogous to asking whether the Pope can
espouse heresy. This is not the place for a
lengthy discussion of the rights and wrongs
of Supreme Court discretion in interpreting
constitutional provisions. But it is the place
to note that there are j udges and scholars who
to a greater or lesser degree believe it is possible to measure the interpretive fidelity of
some Court decisions.4 0 Words and phrases,
after all, do have some meaning, and drafters
of constitutional provisions did have intentions and goals. When these appear to be
transgressed, dissenting justices and legal
scholars often protest vigorously and engage
in considerable semantic analysis or historical research. Sometimes the issue is hard to
resolve, but sometimes interpretive hindsight
condemns "interpretive infidelity," as in the
cases where the Court upheld the constitu31. United States v.Twelve 200-Foot Reels, 413 U.S.
123 (1973).
32. 394 I.S. 557 (1969).
33. Frontiero v. Richardson, 411 U.S. 677 (1973).
34. 347 U.S. 497 (1954).
35. 11 Wall. 113 (1871).
36. '4 Wheat. 316 (1819).
37. Roth v,U.S., 354 U.S. 476 (1957), and Walz v. Tax
Conm'n, 397 U.S. 664 (1970), respectively.
38. Ehod v. Burns, 427 U.S. 347 (1976).
39. Bates v.Siate Bar of Ariz., 433 U.S. 350 (1977).
40. Berger, supra n. 8, is the classic e'xample of such a
scholar. 'Justice Black is the classic example of such a
judge. See, for example, his dissents in Barenhlatt v.
United States, 360 U.S. 109 (1959), and Smith v. California, 361 U.S. 147 (1959). More generally, see John Hart
Ely's discussion of this philosophy, which he calls
"inttrpretivism," in DEMOCRACY AND DISTRUST: A TitEORY OF JUDICIAi. RFvivw, chs. I, 2 (Cambridge, Mass.:
Harvard University Press, 1980).

December-January,1983

tionality of relocating Japanese Americans


during World War II, an action now almost
universally acknowledged to have violated
their constitutional rights.4"
While conceding the necessity for discretion in applying vague phrases to particular
situations, critics of activism on this dimension argue that the Constitution is not a constitution if it can be significantly altered at
the will of nine or five justices in the course of
a lawsuit. Although it is a "Constitution
intended to endure for ages to come,"2 it does
not follow that the Court can ignore the very
words of the document. Article V provides an
amending process if particular provisions
prove unpopular or dysfunctional.
Supporters of activism here argue that the
Court's main function is the smooth application of an Eighteenth Century document to
Twentieth Century problems, which may require new meanings for old provisions. It is
the spirit of the document, they argue, rather
than the exact wording or the framers' timebound intentions that is important. At any
rate, interpretive fidelity is clearly a dimension of judicial activism and warrants discussion in any overall treatment of the
phenomena.
Let me discuss the two considerations separately. With regard to wording, I think it is
fair to call activist any decision that appears
to clearly contradict any constitutional provision in terms of the ordinary meaning of its
wording, or any decision that is contrary to
the logical implications of two or more provisions considered together. The Minnesota
41. Hirabayashi v. United States, 320 U.S. 81 (1943),
and Korematsu v. United States, 323 U.S. 214 (1944).
42. McCulloch v. Maryland, 4 Wheat. 316, at 408, 415
(1819).
43. Home Bldg. and Loan Ass'n v. Blaisdell, 290 U.S.
3908 (1934).
44. Harper v. Virginia Bd. of Elections, 383 U.S. 663
(1966).
45. Bolling v. Sharpe, 347 U.S. 497 (1954); Frontiero v.
Richardson, supra n. 33.
46. Santa Clara County v. Southern Pacific R. Co., 118
U.S. 394 (1886). At the beginning of the case, Chief Justice Waite announced that the Court did not wish to hear
argument on the question as all justices were of the
opinion that the Fourteenth Amendment applied to
corporations.
47. The first such case is Everson v. Board of Educ. of
Ewing Township, 330 U.S. 1 (1947).

moratorium case4 3 is illustrative. The Court


upheld a state law impairing contracts despite the explicit prohibition against such legislation found in Article I, Section 10.
44
The Harper
decision, which declared state
poll taxes unconstitutional, provides a more
complex example. The Twenty-fourth
Amendment, adopted two years earlier,
banned poll taxes in federal elections but said
nothing about poll taxes in state elections. It
is unclear why the latter were omitted. Perhaps Congress would not pass or the states
would not ratify an amendment barring poll
taxes in state elections. Perhaps it was a matter of strategy, with the elimination of poll
taxes in federal elections helping to eliminate
them in state elections. Nonetheless, the
Court, although itdid not discuss the Twentyfourth Amendment in deciding Harper,
amended the Constitution in a manner that
Congress and the states had refrained from
just two years earlier.
Also activist are those decisions that effectively create new constitutional provisions by
finding them, through a strained or illogical
interpretation of language, in pre-existing
provisions. A prime example is creation of
the "equal protection component" of the
Fifth Amendment.45 It is difficult to derive
such an interpretation from an ordinary reading of the words "nor shall any person.. be
deprived of life, liberty or property without
the due process of law." Moreover, if the
words had been historically understood to
convey such a meaning, the equal protection
clause of the Fourteenth Amendment would
have been unnecessary as that amendment
already contained a due process clause.
Constitutional history contains other important "additions." For instance, the method
by which the Court extended the Fourteenth
Amendment's due process clause from persons to corporations is perhaps well known
but hardly well reasoned.46 And the transformation of the same clause to constrain state
"establishment" of religion-for example,
aid to parochial schools-is neither well
47
known nor well understood.
As an aside, it is interesting to note that
many such "amendments" generate little controversy. Apparently these actions "go with

the flow." It would be anomalous to forbid


states from engaging in racial discrimination,
but to have the federal government doing so.
Corporations were the obvious progenitors of
economic progress in the late Nineteenth Century and the contract clause did not provide
sufficient protection against potentially devastating government regulation. In sum, many
Court "amendments" are welcome ones, but
they are no less activist for that.
I also categorize as activist those decisions
interpreting a provision contrary to the reasonably clear and consensual intentions of its
writers. It is also fair to place in this category
those decisions applying a provision to a
situation existing at the time of the provision's adoption to which it is clear the drafters
did not intend for it to apply. Decisions flying
in the face of the framers' intentions are
infrequent, but do occur. Again the Minnesota moratorium case comes to mind. The
clear purpose of the contract clause was to'
prevent states from altering repayment schedules, as some had done in the hard times of
the 1780s. Yet this was exactly what the Minnesota law did and the Court upheld it.
Decisions applying constitutional provisions to situations where the drafters did not
anticipate application are more common.
The Founding Fathers, for instance, would
have been (and a few were) quite surprised to
learn that the contract clause forbade states
from altering the terms of corporate charters
they granted, as Dartmouth College v. Woodward48 held. Anti-abortion laws were prevalent when the Fourteenth Amendment was
adopted, but no one suggested that the due
process clause would render them unconstitutional.
It should be emphasized that because of
inadequate discussion, poor records or conflict in the evidence, it is by no means always
easy to ascertain the intentions of the framers.
In such cases, the justices cannot be faulted
for adopting an intrepretation for which
there is a reasonable evidentiary basis. Indeed,
in cases such as the desegregation decision
where historical evidence concerning intentions can be adduced to support both sides of
the coin (not necessarily in equal proportions), the Court would be damned to acti244

vism no matter which way it decided. The


essence of the drafters' intentions criterion is
that the intentions have substantial clarity.
Substance/democratic process distinction
It is often argued that there is greater justification in some areas for court policymaking
than in others. In footnote four of the Carolene Productscase Justice Stone offered the
classic identification of those preferred areas:
"legislation which restricts those political
processes which can ordinarily be expected to
bring about repeal of undesireable legislation" and "[legislation] which tends seriously
to curtail the operation of those political processes ordinarily to be relied upon to protect
[discrete and insular minorities]." 49
In the wake of this famous footnote, the
Court for about a decade followed the "preferred position" doctrine, which subjected
laws impinging on the political process to
greater judicial scrutiny. While the Court has
since abandoned "preferred position" as formal doctrine, it still uses reasoning and rhetoric reminiscent of it, and many civil libertarians continue to harken to it as a rationale
for heightened judicial scrutiny in the area of
their primary interest.5" Not all agree, of
course; many see little distinction between
Court policymaking concerning freedom of
expression and that affecting more substantive policy areas. It is this dispute that renders
the substance/process distinction an important element in a discussion of activism.
Thus, the footnote four philosophy serves as
the genesis of the substance/democratic process distinction.
The crucial distinction is between those
Court decisions relating to the integrity of the
democratic political processes and those that
do not affect them. It is a fundamental tenet of
our constitutional system that political minorities have an opportunity through open
48. Dartmouth College v. Woodward, 4 Wheat. 518
(1819).
49. Supra n. 5.
50. Recently John Hart Ely and Jesse Choper have
advanced this basic position in sophisticated booklength arguments. Ely, supra n. 40, and Choper, JUDICIAL
REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME

COURT (Chicago: University of Chicago Press. 1980).

Judicature Volume 66, Number 6 December-January,1983

communication and democratic political processes to become a majority. Court decisions


protecting or enhancing this tenet can be
accounted as more justified than decisions
affecting other types of public policy.
According to this logic, decisions developing or altering policies affecting the political
processes are not activist. Basically, these
involve freedom of expression, the franchise,
conduct of elections, and the nature of representation. Such decisions do not directly affect
substantive policies. Rather they relate to citizens' opportunities for input into the policymaking system. The high Court has made
many such decisions upholding, widening,
and equalizing these opportunities in the
past half century.
Activist decisions on this dimension are
those which make economic policy, regulate
the non-political-process activities of institutions or groups, or impinge people's careers,
lifestyles, morals, or religious values. Obviously the scope of this category is broad. It
includes the "substantive due process" decisions so common to the first 40 years of this
century as well as the "new due process" coming in the wake of the Griswold v. Connecticut 5 birth control decision. (Note, however,
that I am not defining as activist those decisions which uphold legislation regulating
the economy, lifestyles, etc. Only when the
Court negates other agencies' policies or
makes such policy itself is it being activist.)
Brown v. Board and many subsequent desegregation decisions (but not those involving the right to vote or the legality of sit-ins or
other forms of protest) occupy something of a
middle ground on this dimension. Blacks
clearly constitute a "discrete and insular
minority." However, many race related decisions also have substantive aspects in that
they directly affect people's lifestyles or values.

Specificity of policy
Traditionally, courts stepped into public policy only to nullify laws. Such a decision often
left legislators or administrators free to pursue other approaches to a problem. While
nullification is still common, in recent years
51. 381 U.S. 479 (1965).
52. 413 U.S. 15 (1973).

courts have increasingly become positive policymakers as well. That is, they have begun to
command government agencies to undertake
certain policies, sometimes in minute detail.
In some celebrated cases, courts have virtually
taken over the management of school systems, prisons, and hospitals. Positive policymaking by the judiciary could be the wave
of the future, but it will not arrive without
considerable criticism.
Courts may have the right to nullify unconstitutional policies, critics argue, but they
have no warrant to behave like a legislative or
administrative body. Proponents of positive
policymaking reply that the Constitution
contains commands as well as prohibitions
and that courts are obligated to enforce the
former when other agencies cannot or will
not. I will designate this emergent facet of the
debate on activism the Specificity of Policy
dimension.
The key to activism on this dimension is
positive policymaking by the Court. This
includes those decisions that, in effect, declare
or develop new policy, sometimes with attention to detail, or that specify particular behavior government agencies need to follow in
pursuit of an existing policy. Examples are
not hard to find. Roe v. Wade did more than
strike down state abortion laws; it rewrote
them in chapter and verse. In Miller v. California52 an explicit obscenity code was developed. Mirandadictated to the police what officers must do prior to interrogating a suspect.
Some positive Court decisions possess aspects of negative and/or permissive types of
policy. Common sense and context will have
to be applied to their classification. The abortion case and Miller v. California,for instance,
have a permissive component: states are free
to have no laws whatsoever governing abortion or obscenity. However, few states have
chosen this option and, moreover, the options's existence was not crucial to the Court's
decision in either case. Roe v. Wade also has a
negative component in that it rendered unconstitutional then-existing laws prohibiting or
severely limiting abortions. Had that been all
the Court did, a negative classification would
have been appropriate; however, the Court's
promulgation of its own trimester policy

warrants a positive classification for the case.

Availability of an alternate policymaker


"Courts," Justice Stone noted in 1936, "are
not the only agency of government that must
be presumed to have the capacity to govern." 53 That is a frequently echoed theme: the
Supreme Court must exercise self-restraint in
the face of other agencies' attempts to develop
policies for pressing problems. Such protest
usually takes into account how well courts
are equipped vis-a-vis a legislature or an administrative agency to make intelligent policy in any given area.
Thus the final dimension pertains to what
I will call the Availability of an Alternative
Policymaker.54 The central question here is:
to what extent could another agency make
policy similar to that found in the Court's
decision? Two factors shape the answer: First,
does another agency have the authority to
make policy and, if so, is it politically or
practically feasible for it to do so? Second,
does another agency have more expertise and
access to information to make policy than the
Supreme Court?
Sometimes Court decisions or ongoing
interpretation will leave a potential alternate
policymaker uncertain of its legal authority.
In the era of substantive due process and dual
federalism, Congress was often inhibited in
its regulation of labor conditions around the
nation. Similarly, even integrationists mistrusted Congress' authority to desegregate
schools before 1954 because the Court's Plessy
decision had explicitly upheld the constitutionality of separate facilities. More often,
however, lack of authority is not the inhibiting factor. Legislatures have always had the
authority to pass laws prohibiting prayers in
schools, require busing for the achievement
of racial balance in schools or even mandate
Miranda-like warnings before the interrogation of suspects. The crucial question is usually the political or practical likelihood of
another agency taking such action.
The phrase "political or practical likelihood" of action does not mean that the alternate policymaker necessarily has to arrive at
the same policy as that embodied in the
Court's decision. This would imply the inev246

Judicature Volume 66, Number 6

itability or absolute correctness of the policy,


in which case it would make little difference
who promulgated it. Policymaking is a matter of choice. But it is to some extent a reasoned and genuine choice-one where two or
more policies (one encompassing the Court's
decision) are possible or probable outcomes
of debate and political pressure. In short,
there does have to be a reasonable likelihood
that an alternate policymaker could have
come to the Court's position.
Quite often this is not the case. Occasionally, the decisional structure effectively precludes such a choice. It would be quixotic to
expect rurally dominated legislatures in urban states to reapportion themselves along
the one-man-one-vote line commanded by
the Court. More often, intense political pressures make any real consideration of alternative policies unlikely. The word "intense"
here is intended to delineate a situation going
beyond mere majority opposition to the
Court's policy. It implies a communal divisiveness or a strong antipathy toward minority political, religious, or cultural positions.
During the 1950s, for example, no one would
have expected Southern legislatures to enact
desegregation laws and few legislative bodies
of any region or level could resist proposed
anti-communist laws.
Judges can lay claim to no particular
expertise in substantive policy areas. Few
have acquired any specialized knowledge
through prior legislative concentration or
administrative service, and judicial dockets
are always broad in scope. More important,
judges lack a specialized staff for in-depth
research on the non-legal aspects of the issues
posed in many cases. By comparison to other
agencies, courts have virtually no staff at all.
Moreover, the information processing system accompanying judicial decisionmaking
is not generally conducive to informed policymaking. The case can stem from a particular event or situation that may or may not
53. United States v. Butler, 297 U.S. 1, at 87 (1936)
(dissenting opinion).
54. I have borrowed the term from Carter, When
Courts Should Make Policy: An lnsfitutionalApproach,
in Gardiner, ed., PUBuIc LAW AND PUBLIC POLICY (New
York: Praeget, 1977).

December-January,1983

represent the policy dilemma generally. Briefs


and oral arguments are developed by lawyers
schooled in and encouraged to stress precedent and analogy rather than facts illuminating the social consequences of alternate policy choices. While social science data are
occasionally included in briefs or opinions,
more often lawyers and judges give little systematic attention to a decision's impact.55
Not all judicial decisions, however, call for
expertise or complex data. Sometimes the information needed is simple and the crucial
question is one of values. Judges are as competent as anyone else to make such choices. Statistical analyses might inform the details of a
reapportionment decision, but they are irrelevant to the fundamental philosophical issue. Impact analyses would do little to enlighten a decision about the constitutional
wisdom of prayers in the public schools. Indeed, where the focus is on a facet of the
judicial process itself (e.g., did the appellant
receive due process?) the judges' expertise is
paramount.
Activism on this dimension consists of
decisions that (a) establish policy where there
is a reasonable likelihood that an alternative
policymaking agency would have adopted a
similar policy in the foreseeable future, and/
or (b) the nature of the policy is such that
choices are better informed by data or expertise not normally available in the judicial
process. Again Roe v. Wade serves as an illustration. The policy at issue was-as Justice
Blackmun's opinion conceded-illuminated
by physiology and medical technology, subjects normally beyond the ken of jurists.
Moreover, several state legislatures had already adopted policies similar in spirit if not
detail to the Court's, and public opinion polls
showed majority support for liberalized abortion policies. Bell v. Maryland" where the
Court deferred consideration of the constitu55. For discussions of the information problem see
Miller and Barron, The Supreme Court, the Adversary
System and the Flow of Information to the Justices. 62
VA. L. REX'. 1187-1245 (1975); and Lamb, judicial PolicyMaking and InformationFlow to the Supreme Court, 29

L. REV. 45-124 (1976).


56. 378 U.S. 226 (1964).
57. 372 U.S. 355 (1963).
58. 378 U.S. 500 (1964).

VAND.

tional question surrounding the public accommodations issue while Congress was considering the Civil Rights Act of 1964 is an
example of judicial restraint on this
dimension.
Gideon v. Wainwright57 is an example of (a)
but not (b). There was considerable discussion of the merits and logistics of providing
counsel for indigent felony defendants at the
time of the decision and many legislatures
had taken steps to that effect. However, judges
were certainly as knowledgeable as legislators
in making policy so close to their own realm
of experience. Aptheker v. Secretary of State5
illustrates (b) but not (a). Congress and the
State Department certainly knew more about
the national security implications of overseas
travel by members of the Communist Party,
but given the temper of the times, the passport provisions of the McCarren Act were not
likely to be repealed.

Conclusion
Judicial activism is a central, if not well
understood, feature of the American political
system. As such, it has long been subject to
both polemical and scholarly analyses, although sometimes it is not easy to separate
the two. Most such attention, however, has
been ad hoc or at least without a general
approach to the phenomena. Thus, for most
of us, the concept of judicial activism has
little common structure or meaning.
My purpose here has been to give the concept some structure and meaning. I have done
this by developing out of the literature six
distinct dimensions of what has been termed
judicial activism. I have tried to remove or
minimize the ideological components or motivations found in the literature. On my dimensions, judicial activism is a multi-directional
phenomena. It can be liberal or conservative,
libertarian or statist, politically necessary or
unnecessary, or, for that matter, unrelated to
ideology and politics at all. I hope that these
dimensions will prove useful to understanding judicial activism, and that they will
sharpen discussions and analyses of it.
01
BRADLEY C. CANON is a professor of political science
at the University of Kentucky