Wednesday, June 14, 2006

Who's More Activist?

In a recent law review article, Max Huffman reviews Stephen Breyer's Active Liberty and compares it with Antonin Scalia's A Matter of Interpretation. Although Huffman claims the gulf between the two ideologies is not as great as it seems, I believe the ideologies are systematically different in that the former's focuses on the real world outcome of his decision and the latter looks only to the text and history.

Scalia is a well-known Textualist-Originalist, which means he looks for the most reasonable interpretation of the text, and when that is not available, he searches for how reasonable people interpreted the text when it was written and ratified. The practical effects of the decision are mainly irrelevant.

Breyer is more of a pragmatist, or as Huffman puts it, he looks

to ensure that the consequences of the interpretation accord with the purposes of the text.
He focuses on both the text and other real-world considerations, such as how the purpose of the text would interplay with the consequences of his decision. If the purpose of the text is negated by effects of a decision, the pragmatist would render a different decision.

Interestingly, Huffman argues that Scalia is the greater "judicial activist." Defining activist -- or actually using Harriet Mier's definition -- as someone who intends that the judiciary oversee and infringe on the responsibilities of the other coequal branches, he states:

The undisguised import of Justice Scalia’s discussion of legislative history is that by ignoring it, the Court hopefully will cause Congress to stop creating it and instead legislate in some more appropriate fashion. If any judicial endeavor is susceptible to being labeled “problem solution” or “oversight,” it is that one. Justice Breyer’s stated goal of determining the purposes of the text being interpreted and considering whether the consequences of a particular interpretation, meet those purposes, must be thought the less activist approach.
I would define activism differently. A judge whose ideology makes it likely that his decisions will overstep the bounds of the court is an activist. Now obviously that definition begs the question of what decision is out of bounds. But I think we could all agree that some decisions are unreasonable and out of bounds. Those decisions are generally cases where the judge decided to act as a legislator. Textualist-Originalist decisions are less likely to be unreasonable because Textualism-Originalism provides a guidepost to review judges and therefore makes it less probable that they would decide cases as legislators. Originalism's greatest quality is objectivity, which mitigates activism.

Huffman's article is worth a read, especially if you have read either Scalia's or Breyer's book.


Blogger Charlie Hall said...

'Originalism's greatest quality is objectivity, which mitigates activism'

I disagree. It has been a long time since most of the Constitution was written and interpretations have changed with the times.

For example, an originalist interpretation of the establishment clause would reverse decades of precendent in applying it to the states. It is clear that Jefferson and Madison did not understand it as applying to the states, as all of New England except Rhode Island maintained their established churches into the 19th century. (Rhode Island never HAD an established church.) But OTOH it would accept the broad application to the federal government that the ACLU supports; much of the current government support to religious institutions would be held invalid. Both of these should be considered activist positions today. I'm working on my own post on this very point.

Even more radical would be to void the kind of executive branch legislating that takes place via regulations. The Supreme Court indeed took a dim view of this during the first five years of the New Deal, until Roosevelt was able to appoint justices who realized that Congress just couldn't write sufficiently detailed legislation to cover every contingency. The Administrative Procedures Act codified this into law in 1946:

No true originalist would permit such, as the founding fathers never imagined an executive branch agency essentially making law -- but the chaos that would result from voiding thousands of federal regulations that have the force of law would mean near anarchy. Justice Breyer's consideration of such effects definitely has the edge as a practical, conservative method of jurisprudence.

6/14/2006 11:21 PM  
Blogger Nephtuli said...

Well, we're defining activism differently apparently. I don't disagree that a strict interpretation of originalism would erase decades of precedent. Of course in reality no judge actually calls for that, as even Thomas allows precedent to trump the original understanding in some cases.

And Breyer's jurisprudence is certainly more practical from that perspective, but that's not the point. Originalism is not supposed to be pragmatic; that's its draw.

6/15/2006 12:17 AM  
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