Friday, May 30, 2008

Gubernatorial Activism

I have watched with amusement over the years as the charge of "judicial activism" has morphed from meaning something like "a judicial decision to overturn the will of the people" into something more like "a judicial decision the speaker doesn't like." A nice recent example of the latter was in Sen. McCain's May 6 speech, in which he condemned Kelo as an instance of judicial activism---even though the Kelo case left to elected bodies the decision whether to use the power of eminent domain for redevelopment projects. It was the losing side in Kelo that sought intervention by the courts to block the political process. Kelo may or may not have been rightly decided. (I happen to think it was rightly decided, although I thought the New London plan was a bad idea.) But if it was wrong, that is not because it was an activist decision, unless "activist" is now simply a synonym for wrong.

Meanwhile, it turns out that charges of activism have now moved from the judicial to the executive realm. Note the reaction of one conservative (ahem) activist to the news that New York Governor David Paterson issued a directive to New York agencies to recognize as legal out-of-state same-sex marriages. Here's the quote from yesterday's NY Times story:
“It’s a perfect example of a governor overstepping his authority and sidestepping the democratic process,” said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. “It’s an issue of public policy that should be decided by the voters.”
Since when are governors not permitted to make decisions of public policy? Perhaps Mr. Raum was referring (obliquely) to the fact that Paterson was not elected Governor but became Governor when Elliot Spitzer resigned. But if so, this point is triply misguided: Spitzer himself favored recognizing same-sex marriage; Paterson was elected on the same ticket as Spitzer; and if the voters of New York State are unhappy with this decision, they can turn Paterson out of office and replace him with a Governor who will rescind the directive.

There could be a legitimate complaint of overreaching if Paterson's order purported to bind the courts and the NY legislature, but it appears not to, and with respect to the courts, it's not even clear that this would be overreaching. At the federal level, under the Chevron doctrine, executive interpretations of statutes are given deference by the courts. I'm not saying that Paterson's directive necessarily would be entitled to the same deference---only that seeking such deference would not automatically count as overreaching. In any event, Raum's criticism appears to be less about checks and balances and more about the substance of Paterson's directive.

Next up: Criticism of "legislative activists" who use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws. At that point, the critics will need to turn to the courts to block such laws, which, of course, will not be judicial activism because, uhm, you know, these will be BAD laws. Oh no wait. We're already there. See McCain speech, supra.

Posted by Mike Dorf


Mortimer Brezny said...

Criticism of "legislative activists" who use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws.

Newsflash! Professor Dorf just criticized a fundamental rights argument! All his liberal buddies must be tearing their hair out! Larry Tribe plans to picket outside his office!

Michael C. Dorf said...

I'm sorry to disappoint you, Mr. Brezny but: 1) Neither Larry Tribe nor I nor any of my liberal buddies (with the possible exception of Ronald Dworkin and Jim Fleming) ever said the critique of judicial activism lacked all force. We only ever said that, on balance, there sometimes remain reasons for courts to construe and enforce counter-majoritarian rights. 2) I wasn't actually endorsing the critique of activism in this post anyway. I was merely pointing out that the critique had so morphed that it was losing the strength it had when it was more narrowly focused on counter-majoritarian judicial decisions. 3) Perhaps you can explain in a follow-up comment that now I'm just being, in your words, a "prissy twit" again. If so, readers should interpret my failure to respond to that follow-up as further evidence of my abject prissiness and twittiness. 4) Most of all, thanks for reading and commenting on my blog. In an era of readership polarization, it's useful to hear from people who think I'm a vain and immoral con man. Really.

Bob Moss said...

Aside from the drift in Supreme Court decisions away from "public use" and towards "public purpose", which are two different things, it is easy to establish that Kelo failed to follow established rules of construction. Few commentators seem to realize that under Kelo, the only way a takings decision can be invalidated is if it's arbitrary and capricious, or corruptly motivated. Under that standard, the takings clause becomes superfluous, because the due process clause would cover those cases. And the canons of construction require a presumption against superfluous text.

KipEsquire said...

Paterson was simply implementing the unambiguous recent ruling by NY courts (up to an including the state equivalent of a denial of cert) that long-standing NY statute and precedent require recognition of valid out-of-state marriages, even when those marriages could not be entered into in NY itself.

How is "doing what the courts say must be done" a case of "executive activism"?

First prize, meanwhile, goes to Gary Bauer, who is lamenting that an "activist" governor (who of course must be immediately impeached) has "overturned" (somehow) a court ruling!

The consequentialist vacuousness of anti-gay social conservatives has never been more prominently on display.

Mortimer Brezny said...

I wasn't actually endorsing the critique of activism in this post anyway. I was merely pointing out that the critique had so morphed that it was losing the strength it had when it was more narrowly focused on counter-majoritarian judicial decisions.

Fair enough. But my point was not that you were endorsing the view that "'legislative activists' [should not] use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws." Rather, it was that you were mocking someone who would argue that "'legislative activists' should not use their majority status to enact laws that oppress the constituents of the minority of legislators who oppose those laws". Except that formulation is precisely that of a liberal proponent of fundamental rights analysis. So, if you are mocking anyone, you are mocking liberals who make fundamental rights arguments. You may be, unintentionally, mocking yourself.

Your move now is to step away from the standard fundamental rights argument and claim "We [liberals] only ever said that, on balance, there sometimes remain reasons for courts to construe and enforce counter-majoritarian rights," which is a very weak interpretation of the phrase "a fundamental right". It isn't very fundamental and it isn't much of a right if it is only enforeceable "sometimes" and "on balance," nor is it all that counter-majoritarian, either.

It does not seem that you can have your cake and eat it too.

As for the claim that Patterson is not overreaching, I do not think your use of Chevron deference is on-point, and here's why. Often the federal agencies that stand-in for the Executive in administrative cases are actually independent agencies with credentialed staff that does not change with each administration and Department heads with fixed term limits. The deference to federal agency expertise in those cases makes sense, because the deference is to the independent agency's expertise, not to the political preferences of the White House. Here, Governor Patterson doesn't have any particular expertise on the social impact of gay adoption, just to take an example, nor was he elected to effectuate a pro-gay rights platform, as he wasn't elected at all. I think we'd have a different question if Spitzer had done this or if a state agency had done this based on in-house scientific studies or a customary legal review, etc., but here the political arm of the Governor's office did it, and the Governor's rationale for the public policy shift is that he had gay babysitters. That's ridiculous.

Hamiltwan said...

To Bob Moss: I think you're argument backs up Prof. Dorf's point. You say the court failed to follow established rules of construction, which it may have, but that doesn't make it an activist decision. Judicial activism (as I understand it) is the idea of judges acting as legislatures. A different construction of constitutional terms doesn't follow originalism or traditionalism, but it is still Judges doing what they are allowed to do, which is interpret the constitution. They are not in any way restricting legislatures (because legislatures are free not to take), so if there is a flaw in the Court's decision it is judicial passivism.

Of course, perhaps you are responding only to Prof. Dorf's claim that Kelo was rightly decided, in which case I am either a fool or willing to take words out of context to suit my arguments (its hard to say which is worse).

Sobek said...

Wow, I'm surprised at how much of your post I agree with. "Judicial activism" is very rarely defined by the speaker, or used in any meaningful sense. I remember Ted Kennedy complaining about conservative judicial activism, without ever bothering to explain what he meant.

I don't see Kelo as activism, either. I see it as judicial abdication -- the Court finds it hard to come up with a workable standard, so we'll just give up and go golfing or something.

Raum doesn't appear to use the word "activism." He is wrong when he says the governor somehow overstepped his authority -- governors obviously have power to dictate policy to government agencies. If Raum is simply saying, inartfully, that the governor's action is improper because it is contrary to the will of the people, that's not a question of authority, it's a question of voting the guy out. Unlike with life-tenured judges, the voters have a remedy.

As for "legislative activists," a liberal professor I worked with beat you to the punch. He argued in a paper that we published that the Republican Congress overstepped its bounds by denying the Dems a right to participate in legislation. I don't know whether his attitude has changed now that the Dems are in power.

egarber said...
This comment has been removed by the author.
egarber said...

So if Kelo is “activist”, I wonder what McCain thinks of Raich, and how he squares all of this with the states’ rights mantra.

One difference between Raich and Kelo is that the former upheld the national “will”, while the latter offered deference to local “will” (municipalities being allowed to basically call anything “public use”). So at least against that benchmark, both rulings appear to be very UN-activist.

But when you add the traditional conservative states’ rights advocacy (at least philosophically, if not legally) into the mix, it gets even wackier I think. All things considered, it seems to me that a guy like McCain should SUPPORT Kelo – which defended local rights – and OPPOSE Raich, which arguably represents the triumph of national law over that of an individual state. But somehow I think support for the (failed, imo) war on drugs might lead to the opposite finding.

And as Mike clarifies, it’s possible to support Kelo while criticizing the local officials behind it. Down here in GA, I’m pretty sure reforms were passed to prevent Kelo from having any influence – i.e., the law now specifically now outlaws what the municipalities did in that case. So even though it appears counter-intuitive, in the end you could say property rights grew *stronger* after Kelo, given the resulting narrower definitions of Eminent Domain in many states.

With Raich, there’s no chance of such a state correction – since the reach of state law was limited (or pushed back) by an expanded finding for federal law under the commerce clause. And to tie Raich to the fundamental rights banter in the comments, it seems to me advocates of medicinal marijuana should make a constitutional privacy claim next time around (as I recall, this wasn’t the argument before – though I welcome corrections).

Wow, I just babbled five paragraphs.

Len said...

I agree with the original post. McCain either does not know what he is talking about (possibly) or is jumping on the "Kelo is wrong" bandwagon for the wrong reason. What does Kelo say that Midkiff did not 20 years before?

Was the thinking at the time of Kelo that sufficient anti-activist justices had been appointed that Midkiff could be overruled? If so then those who were surprised by the Kelo outcome admit that activist judges means judges they disagree with.

joe` said...

Prof. Dorf,

Tangential point: Are you saying that the term judicial activism applies only to decisions which strip power from the elected bodies? I was under the impression that, e.g., overturning Roe would be judicial activism because it would overrule so much precedent.

(Not that I'm saying Kelo does that. If Kelo extends the Court's takings jurisprudence beyond, say, Midkiff [as argued by O'Connor], it surely does not change doctrine to the extent that overruling Roe would.)

Michael C. Dorf said...

In response to a point raised by some of these posts: The term "judicial activism" NEVER had any precise meaning as a term of art. Historically it has most frequently been used to refer to judicial decisions invalidating actions by elected officials (or the voters themselves in the case of a referendum) where there was at least a colorable argument that what the law or policy in question was valid. In this usage, "judicial activism" is closely tied to the critique of judicial review as counter-majoritarian. The term has also been applied frequently to decisions overturning (what the speaker believed to be) settled law. My post did not refer to this version of the term, although I agree with the comment by len that Kelo pretty much applied prior law, so that it cannot be fairly criticized as activist along the stare decisis dimension either. My main point was that current uses of the pejorative "activism" have so far strayed from its core meaning that it's no longer conveying anything other than disagreement.

Bob Moss said...

To Len (9:25) p.m.: Kelo says very little that Midkoff does not say. But Midkoff was wrongly decided. The drift away from established case law reached the tipping point in Berman, where the Court OK'd D.C.'s redevelopment using eminent domain. Berman's result was borderline correct, because D.C.'s action could be interpreted as abating a public nuisance, but Justice Douglas' dicta ranged expansively beyond the established case law, his fundamental error being the confusion of public "purpose" with public "use".

I agree with the other commenters that this is a side issue to Prof. Dorf's original post.

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