In the Supreme Court, there are two schools of thought that have existed since the inception of the American Constitution. The first school of thought is the invocation of judicial restraint as the policy of the Court. Judicial restraint is the deference of decisions on policy to other political bodies and lower courts. This view is the traditionally conservative view, one that allows for greater state and local power. The other school of thought, traditionally, a more liberal viewpoint, is the use of judicial activism as the policy of the Court. Judicial activism is the use of the court as an apparatus for intervention over the decisions of policymakers through precedent in case law. These two types of judicial policy have become part of an ongoing debate in the Court as to how cases should be decided. Through case law, I will demonstrate that the Supreme Court has been largely an activist court, attempting to right error in law through their decisions. While the whole body of cases will not fit within the confines of this paper, the cases I will present show that the Court has taken to judicial activism far more than judicial restraint.
The paramount case for judicial activism is Marbury v. Madison (1803). In this case, the failure of Secretary of State James Madison to deliver a “midnight” appointment of William Marbury as a justice of the peace drew a writ of mandamus from the litigant. The specific details of the case were not nearly as important as the overriding precedent that came to be part of the Court through the rest of its history.
The majority decision, written by Chief Justice John Marshall, stated that Marbury did indeed have a right to the appointment in question but that his writ of mandamus was not constitutionally sound. The writ was allowed by the Judicial Act of 1789, which was found to be unconstitutional in its attempt to expand the powers of original jurisdiction for the Court. The Court was granted mostly appellate jurisdiction by the Constitution, with some exceptions for original jurisdiction. In short, the Court had struck down a policy made by another branch of the federal government, an action that would later be called judicial review. Judicial review would become a significant tool of judicial activism, but also would become a means to an end for some cases of judicial restraint.
The next use of judicial review was incorporated in Scott v. Sanford (1857), most commonly known as the Dred Scott case. At the heart of the case was the issue of the constitutionality of the Missouri Compromise of 1820, which prohibited the establishment of slavery above a determined line through Missouri. Dred Scott was a slave who was transported north of the Compromise line, and was brought back to Missouri after a few years. Scott’s family brought suit against the owner’s widow over the issue of whether Scott was free or if his status remained that of a slave. Lower courts held for Dred Scott but the Missouri Supreme Court held for the owner’s widow. The Supreme Court would hear the case twice and deliberated, under the leadership of Justice Roger Taney, in 1857.
The Court’s majority decision came against Dred Scott, claiming that the Missouri Compromise’s provision for abolition states was unconstitutional. This claim was based on the feeling that such a provision would prevent the right to private property as well as open and free commerce. Chief Justice Taney said in his opinion:
“…An Act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law…
The opinion of the Court was in favor of deferring to the state laws of Missouri, not accepting that the territorial laws of the Northwest held jurisdiction. The Scott decision is the epitome of what judicial restraint is today; the majority saw that it would be dangerous and out of bounds for the Court to overturn the state’s right to establish its own laws, especially on a divisive issue like slavery. Judicial review served the purpose for restraint in this case, as it would in many similar cases in the future.
The arena in which judicial activism and restraint would occur the most was voter’s rights and the insurance of equal voice among the public in electoral politics. An important battle in this arena was Baker v. Carr (1962), a case that dealt with reapportionment of state legislature seats in Tennessee. The litigants brought suit because there was an arbitrary plotting of districts in the state, which had not changed since the inception of the state statute on apportionment in 1901. Thus, areas that had grown larger over the next sixty years would not be as represented asa other districts in the state. The case was brought to the Court via the Equal Protection Clause of the 14th Amendment, a clause which became more commonly used than any other in case law in the Supreme Court in the 20th century.
In Baker, the decision went in favor of the litigants on the basis of a violation of the Equal Protection Clause of the 14th Amendment. The majority opinion stated that the issue of “political questions” was not applicable to this case because “…We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home…Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking…(these) are well developed and familiar…” The “political question” standard spoken of in this case and first mentioned in Colegrave v. Green can be seen by observers as a sort of liberal activist precedent. The wide reading of what is offensive abroad regarding the United States government or what is a viable remedy is the doing of the activist spirit. This interpretation is also in sync with the topic of concern, which deals with civil liberties and equality amongst the people of the United States. The Baker case provided a broad reading of what is and is not under consideration when dealing with the 14th Amendment and would provide a litmus test in future voting rights cases.
Judicial restraint has also popped up in cases dealing with voting rights, but the arguments made in Davis v. Bandemer (1986) are not as compelling as those made in Baker. The Davis case dealt with the Indiana legislature and the apportionment policy that came about following the 1980 census. Bandemer et. al. Brought suit in District Court, which decided that the apportionment plan was indeed against the Equal Protection Clause because it was “political gerrymandering” instead of nonpartisan district lines that would not be favorable directly to any one party. The Supreme Court, however, saw the case from a different perspective.
In the majority decision written by Justice White, the Court deemed the case justiciable but felt that the evidence provided by the appellants was not sufficient to “surmount the threshold requirement.” The mere fact that the injured parties were not satisfied with the apportionment plan and that their particular party did not win was not necessarily grounds for a decision against the policy based on the Equal Protection Clause. The Court saw the fact that allowing this particular apportionment plan to be deemed unconstitutional for the slightest of error would be a slippery to striking down a large number of apportionment plans. The decision of the Court can be seen as one of judicial restraint, in deference to policy makers who would be closer to the heart of the problem.
The problem I find with the argument levied in Davis, as well as in most cases that are decided on the basis of judicial restraint, is the seeming lack of action by the Supreme Court to act as a body that can produce change and right wrongs that are brought before it. The Court is obviously limited in its ability to bring about broad social changes or create new policy, but it can decide in cases brought before it in favor or parties that represent socially conscious actors. When the Court is given such a case as Davis or, in deeper retrospect, the Dred Scott case, there is not a need to hold back totally from being a political body with a social conscience. Especially in the Scott case, the Court could have provided the legal basis for a greater reduction or total abolition of slavery. While the Court would not have been able to support this hypothetical claim with protection, by law or by arms, they would have been able to pour gasoline on the fire that was already burning toward abolition. The Court should embrace its role as an arbitrator of opposing bodies as a means toward the end of providing broad policies that help level out the playing field of American society.
Having examined several cases relating to the debate over judicial restraint and activism, there are several things I feel should be addressed to conclude this analysis. First, the Court is most definitely an activist body despite its recently conservative makeup. This is the case because despite the ideological makeup of the Court, there is a motivation toward making a statement through precedent in the Court’s decision. Under the guise of restraint and deference to state and local power, a more conservative Court or even occasional restraint decision are meant to be activist in nature; the majority put its foot down on strong federal power and allows other bodies to make policy decisions. Activism is not necessarily a liberal tool but it is a political tool that can be used by conservative elements to subdue liberal reform and maintain the status quo. Activism knows no particular ideology.
Having said this, I feel that the Court should always have the activist nature as part of its decision making process. There is such a wealth of possibility for the Supreme Court to be an organ of progress and social change that, at the sacrifice of nonpartisanship, there should be an encouragement by the American public for the Court to take their decisions not as mere case law but as societal precedent. This could come about if the American public was to become much more concerned in general with the Supreme Court and if the members of the Supreme Court were willing to at least consider adopting such a status. The Constitution allows for certain powers for the Supreme Court and certain limitations; but so far, there is no indication that the Supreme Court cannot act within its role to provide for diverse groups and interests in order to provide for means toward equality. The Supreme Court is not oblivious to political trends and changes nor should it act in such a manner. Despite the possibility of unsavory changes by elements that are not compatible with my personal political ideology, I feel that a judicially activist course is more effective and much stronger a check than a court that sits on its hands and allows others to do their work.
