In the Times, Adam Liptak notes that the Roberts Court is not nearly as “activist” as many have made it out to be. Moreover, he sheds light on research by Clark Neily, discussed in his new book Terms of Engagement (which I will be reviewing for the NYU Journal of Law & Liberty):
In a new book, “Terms of Engagement,”Clark M. Neily III of the Institute for Justice, a libertarian group, calculated that the Supreme Court struck down just 103 of the 15,817 laws enacted by Congress in the half-century ending in 2002. “It is implausible,” he wrote, “to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.”
Mr. Neily urged the Supreme Court to be more active but rejected the phrase “judicial activism.”
“It’s inherently pejorative,” he said, favoring instead a new term: “judicial engagement.”
The federal appeals court in Atlanta adopted that nomenclature in 2011 in striking down the heart of President Obama’s health care law, saying, “the Constitution requires judicial engagement, not judicial abdication.”
After the Supreme Court argument in the case in the spring of 2012, with things looking grim for the fate of his law, Mr. Obama tried to shift the terms of the discussion back to activism. “I’d just remind conservative commentators,” he said, “that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”
Three months after Mr. Obama’s remarks, Chief Justice Roberts broke with his usual conservative allies and voted with the court’s four liberals to uphold the law. In a joint dissent, the four conservatives said the majority was wrong to portray its ruling as “judicial modesty” when “it amounts instead to a vast judicial overreaching.”
Mr. Neily, in common with few people except Justice Kennedy, the sole justice in both majorities, said he found both decisions defensible.
“Both represent applications of judicial engagement,” he said. “Judicial engagement doesn’t call for a particular result. It calls for a particular approach to judging.”
Adam also gives a shoutout to Joel Alicea for his article on restraint in NFIB v. Sebelius:
Writing in Public Discourse last year, Joel Alicea, then a law student at Harvard University, said “the clash between the chief justice’s opinion and that of the joint dissenters” is “a clash between two visions of judicial restraint, and two eras of the conservative legal movement.”
In Unprecedented, I discuss at some length the crashing visions of restraint between Roberts and the dissenters. The source of Roberts’s vision is a topic I will save for my review of Clark’s new book.
Update: More from Jon Adler:
Unless one advocates a Thayerian approach to judicial restraint, this measure of “activism” tells us very little about whether the Court’s decisions are correct. As Liptak notes, many conservatives and libertarians believe the Court should be more active in striking down federal legislation, particularly where laws stretch the bounds of Congress’s enumerated powers. And while some on the Left complain of an unduly “activist” Roberts Court, most progressives have not become true advocates of “restraint,” as they would have been thrilled had the Court been more “activist” and struck down the Solomon Amendment or the federal Partial-Birth Abortion Act. Doctrinal innovations are only disparaged when they move in an unwanted direction.
In conventional political discourse, “activism” has become short-hand for a wrong-headed Supreme Court opinion. Attacking the Court, or a given decision, with this label is easier than making the case that a given decision is wrong on the merits. But if we truly want to understand the Court, and fairly evaluate its work, we need to move beyond such simplistic labels. If we don’t like the current Court’s approach (and I like it in some areas, but not in others), we should not assume its because the Court is too “activist,” but because it has doctrinal commitments with which we disagree.