With a flurry of 5-to-4 decisions handed down at the end of June,
the Supreme Court served notice that things are changing at One
We should pay attention.
The Court is powerful and important. Its ability to strike down
state and federal laws means that it sets the government's
boundaries. It also plays a leading role in articulating America's
constitutional commitments. It gives substance and definition to the
majestic generalities of the Constitution, phrases such as "due
process" and "equal protection." In a real sense, the subject of
Supreme Court decisions shows who we are as a people, what values we
With so much power concentrated in the hands of so few, citizens
must be able to evaluate the court's performance.
Activism vs. fidelity is flawed
Conventional wisdom focuses on a distinction between what we
could call activism and fidelity. Faithful judges (the good ones)
apply the law regardless of their own views. Activist judges (the
bad ones) rule based on their own preferences.
This model of activism and fidelity is the one Chief Justice John
Roberts invoked in his 2005 confirmation hearings when he promised
to be an umpire, not a player.
Unfortunately, it is useless in evaluating decisions because it
offers unrealistic caricatures on both sides. True activists don't
exist; all judges believe that they are faithfully applying the law.
But objective umpires don't exist either, because the Constitution
does not provide clear answers in hard cases. That is what makes
them hard. Consider some of the most controversial decisions from
the just-concluded term.
Does the Constitution's protection of the freedom of speech mean
that Congress cannot regulate corporate political advertisements
that in effect endorse or oppose particular candidates? Does it mean
that school officials cannot regulate off-campus speech by students?
Does the guarantee of equal protection mean that school boards
cannot take an individual's race into account in assigning students
to public schools in order to promote racial integration? And how
does the due process clause apply to a ban on partial-birth
Anyone who is candid about these questions will admit that the
Constitution itself does not tell courts how to decide them. The
Constitution indicates that some values - speech, equality, and
liberty - are important. But it does not explain how to balance
those values against competing government interests, or even how,
precisely, these values should be understood.
Nor, in fact, does the Constitution say that the task of
balancing values and interests is given to judges alone. Other
people can balance, too, perhaps better than the court. Maybe
Congress is better at figuring out what regulations will mitigate
the corrupting influence of money on politics. Maybe the president
is better at deciding what national security requires. Maybe school
administrators are better at deciding what measures will fulfill
their educational missions.
The key question is not whether judges are activist or faithful.
It is when the court should be assertive in enforcing a
constitutional provision, disregarding the views of others, and when
it should be deferential, respecting their views. Understanding that
the key choice is the one between deference and assertiveness takes
us away from useless rhetoric about activism and back to basic
principles of American government.
Judicial review is the court's contribution to the separation of
powers, its role as check and balance in our system of divided
government. The question we should ask is when do we want the Court
to be a meaningful check on the president and Congress, a meaningful
supervisor of the states? And when do we want the political branches
to have the last word?
With this question in mind, we can evaluate the court's
performance by asking whether its choices of deference and
aggression can be explained by any principle. …