Most legal reporters would burn their briefs to overhear U.S. Supreme Court discussions between Justices Antonin Scalia and Stephen Breyer, respectively the leading conservative and liberal minds on the court. They would additionally risk cruel and unusual punishments to sit in on a Scalia-Breyer debate on the hot topic of “judicial activism.”
Yet a series of such debates took place over the weekend at a “Conversazione” jointly held by the universities of Boston, Oxford and Melbourne in the latter city. They were attended not only by some of the cleverest lawyers and historians from all three jurisdictions but also by lucky law students from Melbourne. And they may have detected a new intellectual tremor.
Sixty years ago “judicial activism” was definitely not a hot topic in countries belonging to the Anglo-American legal tradition. Division of responsibility was then clear: Congress or parliament made the law and judges interpreted it.
Then, 50 years ago in the U.S. the Warren Court began making laws on its own judicial authority. Thirty years ago Australia’s high court followed suit. And in the last decade the British government — the last stronghold of legislative supremacy — passed a “Human Rights Act” that allows judges, in effect, to declare laws unconstitutional.
British judges have since exploited the HRA to prevent the authorities from deporting terrorist suspects or effectively controlling immigration.
Allowing judges to overturn, re-write and invent laws means that they become what Shelley called poets — “the unacknowledged legislators of mankind.” Nor is “mankind” an exaggeration. The very latest judicial trend — Justice Sandra Day O’Connor is a particular devotee of it — is to root legal judgments in foreign precedents from countries with constitutions very different from the one hammered out in Philadelphia, such as Zimbabwe.
Instead of being ruled by elected representatives in Congress and the presidency, we gradually find ourselves living under laws shaped by a new political elite of international lawyers. And they may hold very different opinions from the voters. As one speaker, Justice Dyson Heydon of the Australian high court, said in a public speech (the rules do not permit direct quotes from the Conversazione) some years ago:
“When judges detect particular community values, whether in the Australian community or the “international community,” as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold.”
Indeed, given the decisions of the U.S. Supreme Court on such matters as racial preferences — in which the court has consistently imposed “mainstream” solutions opposed with equal consistency by large majorities of American voters — there is no doubt that U.S. judges are guilty of exactly that confusion.
Nor did their confusion end there. Those at the Conversazione favorable to judicial activism responded with two arguments. The first was that judicial activism did not really exist. It was a misleading or useless category of analysis and grossly exaggerated the trivial extent to which judges invade the sphere of elected politicians.
The second held that judicial activism was essential to save us from the kind of human rights abuses that occurred in the 1930s in Europe — a necessary restraint on the potential oppression of minorities by majority rule, no less.
With lawyerly brilliance, some speakers even managed to combine both arguments: it was both vacuous and vital.
Neither argument is persuasive. A federal judge who levies taxes in order to achieve equal educational outcomes across a state is doing something that unelected and irremovable judges simply cannot do in a genuine democracy. To coin a phrase: No taxation without representation.
Equally, if the judges have the power to override the majority in order to defend minority rights, what is to prevent them using that power to oppress both majorities and minorities? That is not a hypothetical point. Nazi oppression in 1930s Europe was greatly assisted by the fact that the judiciary, the bureaucracy and other non-democratic elements in the German state were much more supportive of Hitler than the voters as a whole. Hitler never gained a democratic majority.
Moreover, under the rules of the democratic game, majorities can become minorities overnight in an election, whereas the rules of the judicial game insulate judges from popular disapproval. Justice Heydon again: “Judicial rascals are not to be thrown out. Political rascals can be.”
That is fine as long as the judicial rascals confine themselves to applying and interpreting laws passed democratically by others. It becomes intolerable if they start making laws up on their own.
These arguments were vigorously batted back and forth. But the debate moved to more subtle distinctions when Justices Scalia and Breyer delivered their lectures (which will be published in due course.) Both men plainly like each other. Each cross-examined the other in witty exchanges. And they narrowed the difference between their positions considerably.
In particular, Justice Breyer accepted that it was desirable to restrain the dragon of judicial “subjectivity” that Justice Scalia would slay by requiring judges to interpret the actual words of the law or Constitution.
It was, however, a modest and deceptive concession. As Justice Breyer argues in his new book “Active Liberty,” the “originalist” or “literalist” approach recommended by his opponent has its own problems of subjectivity: “Will canons of interpretation provide objective answers? One canon tells the court to choose an interpretation that gives every statutory word a meaning. Another permits the court to ignore a word … if otherwise the construction is repugnant to the statute’s purpose.”
This is a fair point. Some element of subjectivity is inseparable from legal and constitutional interpretation. Otherwise law enforcement would be a merely practical activity with little or no intellectual content. What is vital if judicial tyranny is to be avoided, however, is to narrow the scope of subjective interpretation as much as possible. And a judicial philosophy that allows the judge to draw upon a wide range of considerations in interpreting the law — not excluding, let us recall, foreign precedents and constitutional declarations — will in practice enable him to legislate rather freely under the guise of sophisticated interpretation.
Fortunately, the subtle distinctions and narrow scope of the Scalia-Breyer debate suggest that judicial activism is now on the defensive; unfortunately, with champions as skilled as Justice Breyer, it still has a great deal of fight left in it.
John O’Sullivan is editor-in-chief of the international affairs magazine, the National Interest.