The Supreme Court: Activism and Abdication

Serious Catholics and political conservatives since the 1950s have strongly criticized the Supreme Court for making public policy and acting as a kind of “super-legislature” to further a leftist socio-political agenda, instead of interpreting the law and judging. We have seen such judicial lawmaking on pornography, abortion, legislative reapportionment, sodomy laws, and the list could go on. While this has certainly been a valid and much-deserved ongoing criticism of the Court, cases in each of its last three terms indicate a new, contrary problem: over-deference to the political branches on both the federal and state levels.

In 2011, the Court decided the companion cases of Camreta v. Greene and Alford v. Greene, which concerned whether a child protective system (CPS) operative and a law enforcement official who backed him up could be sued under federal civil rights laws for an aggressive interrogation of a nine-year-old girl—which under international norms possibly constituted psychological torture—to get her to say that her father abused her. Along with many other organizations, the Society of Catholic Social Scientists filed an amicus curiae brief supporting the girl’s claim (I drafted the brief), mostly because we wanted to focus the Court’s attention—as we tried to do over a decade before in the important parental rights case of Troxel v. Granville—on the CPS’s systemic misconduct that in one article I called “a grave threat to the family.”

In Camreta/Alford, the Court showed no interest in parental rights or addressing CPS abuses, or even in making their abusive operatives legally accountable in any way for their outrageous actions; it used strained procedural norms to avoid the question. The decision must be understood as simply unquestioning deference to an executive agency, in this case a state one. The prerogatives of government trumped parental rights, the family, and even abusive behavior against children by agencies supposedly set up to stop abuse. It was not entirely surprising, since in Troxel the Court did not think parental rights deserving of the highest standard of constitutional protection. One wonders if the Court kept in mind the insistence of The Federalist Papers that while government needed to have enough power to carry out its rightful responsibilities, it also had to keep itself under control.

In 2012, the Court handed down its crucial decision about the Obamacare law, National Federation of Independent Business v. Sebelius. The Court engaged in legal and intellectual gymnastics to uphold the law. While a majority of the justices agreed that Congress had no power under either the commerce clause—whose broad interpretation has been a major basis for expending federal power since the New Deal—or the necessary and proper clause to regulate economic inactivity (that is, requiring people to buy health insurance), the Court still upheld the crucial individual mandate. While the text of the law stated specifically that failure to purchase health insurance would incur a financial penalty—the drafters apparently went out of their way to avoid calling it a “tax”—the Court’s majority nevertheless decreed it to be a tax in order to save the law. While the leftists on the Court almost certainly voted to uphold the law for policy reasons—for decades the left has looked to the Court to decree its agenda into existence—Chief Justice Roberts’ deciding vote, which caused many to scratch their heads, probably reflected the tendency of most “conservative” judges and legal scholars to just almost instinctively defer to the legislative.

Scalia and the other “conservatives” may have jumped off the bandwagon on this one because of the other central principle of “conservative” jurisprudence: federalism. After all, Obamacare for the first time in a major way got the federal government into insurance. Of course, federalism rightly triumphed when the Court struck down the portion of the law requiring states to expand Medicaid. While conservatives can at times almost absolutize federalism—in contrast to the stress on the principle of subsidiarity in Catholic social teaching, which is more flexible and realistic in acknowledging that activities at times have to go to the higher level—this was a welcome part of the decision, since along with the broad view of the commerce power federal grants-in-aid programs have for decades been the other main reason for the excessive expansion of federal power.

The confusion and turmoil resulting from the Obamacare law have already become almost legendary. Instead of such ready deference to Congress, the Court’s “conservatives” should have rethought their long-standing view—forged, to be sure, with the good intention of trying to stop the judicial legislating embraced by their leftist colleagues and the classical liberal jurists of an earlier time—that they cannot strike down laws because the legislative branch acted unwisely or even bungled. A statute whose meaning and contents “we’ll have to wait to learn about,” to paraphrase Nancy Pelosi, hardly meets any traditional legal or moral criteria for being a valid law. Moreover, the upheaval—the word is not an exaggeration in light of what has happened in the past several months—was foreseeable with this 2,700-page law whose parts do not even fit together well. The justices should have recalled what Federalist 78 said about the courts needing to act to insure moderation. They have a role “in mitigating the severity and confining the operations” of “unjust and partial laws” and “to moderate the immediate mischiefs” of laws that have been passed. So, contrary to the criticisms of some conservatives that the courts have no role in trying to correct social wrongs, Federalist 78 says they should go further than that and even respond to unjust laws.

The same excessive notions of deference to the political branches and federalism appear in the Court’s U.S. v. Windsor and Hollingsworth v. Perry decisions of 2013 on same-sex “marriage.” While Windsor went against the norm of deference to the legislative, since it struck down a provision of the Defense of Marriage Act as it pertained to same-sex “married” couples in states that had legalized such “marriages,” it did so because of a convoluted deference to state decision-making (an absolutist view of federalism). While the leftist justices were perhaps prepared to invent a fundamental constitutional right to same-sex “marriage,” most of the “conservatives” clearly were prepared to accept such a radical, unprecedented redefinition of marriage if states duly enact it. What we have is a leftist jurisprudence promoting immorality and a “conservative” jurisprudence of amorality. Something like same-sex “marriage” would have been as unthinkable to our Founding Fathers as the proposition that two plus two equals five. This likely would not have been seen as a valid exercise of state power, any more than the federal government viewed Mormon polygamy in Utah Territory that way.

Hollingsworth might be understood as a sweeping deference to state politicians—both legislators and executives—irrespective of the people’s wishes. Not only did it let stand a lower federal court’s overruling of Proposition 8 against same-sex “marriage” adopted by a citizen referendum, but it also allowed state officials to abdicate their responsibility to defend the law in court. The people enacted a law that the officials didn’t want, and then would not allow lawyers representing the people to have standing to defend it. In effect, they amended the California Constitution’s provisions on referenda by permitting recalcitrant officials to veto the people’s decision. Two “conservative” justices, Roberts and Scalia, were part of the majority, and doubtless some notion of federalism influenced their thinking. This is deference with abandon. How does it square with Federalist 78’s insistence that “the power of the people is superior to both” the legislative and judicial branches—and Alexander Hamilton doubtless meant the executive, as well.

Further, contrasting these decisions and the Court’s Lawrence v. Texas decision (2003) that legalized sodomy with Camreta/Alford—and Troxel before that—makes one see that a near-majority or sometimes majority of the Court will, first, elevate ersatz rights to a greater importance than such fundamental traditional rights as those of parents and, second, afford special protections to groups whose status as disadvantaged minorities or categories of people at all is in question—not only are homosexuals on average in a better economic situation than the general population, but the evidence is that homosexual orientation is far from rigid and immutable—while it allows the family, a natural institution whose health is crucial for the state, to be imperiled. At one time, early in the twentieth century, the Court held that parental rights trumped the state’s child-rearing preferences. Now, if sexual liberties do not trump all else for the Court they are certainly high on the constitutional priority chart.

In the Obamacare case, the Court could not see its way to defending a majority against a public policy with truly serious implications for one of the most intimate of human concerns, physical health—and possibly (with the likelihood of rationing on the horizon) life itself. Nevertheless, it was ready to give a self-styled minority—spearheaded by a juggernaut political movement—at least part of what it wants even though this departed from age-old human understanding and has enormous social implications in the long-term.

Conservatives have been correct, by and large, to get the Court to stop legislating. However, as I wrote in an article in the mid-1990s—which was republished in my book, The Public Order and the Sacred Order (2009)—one should not condemn “judicial activism” across the board. It depends on what is meant by the term. If judicial activism means creating ersatz constitutional rights, it is to be rejected. On the other hand, it should be embraced if it means upholding traditional, clear constitutional principles when the political branches no longer want to do so, as we see in the Obama era. It should be embraced even if it means resorting to the true natural law (as opposed to some imitator, such as the notion of substantive due process that in different eras has been the rationale for absolutist notions of private property and abortion rights) when necessary and when something in the black-letter Constitution cannot more immediately be pointed to. (The “conservative” Scalia probably refused to view parental rights as “fundamental” in Troxel because they do not appear in so many words in the Bill of Rights.) After all, as the great constitutional scholar Edward S. Corwin and others showed, the Constitution came out of the natural law tradition. Nor is reliance on natural law an open door to judicial arbitrariness, as often claimed (especially by certain “conservative” jurists and legal scholars, many of whom have really bought into a positivist jurisprudence). As Catholic legal scholar David Forte has written, the natural-law judge is more likely than the positivist judge to be restrained.

At a time of unprecedented governmental intrusion into people’s lives and public officials who seem to think that traditional constitutional principles are outmoded, the courts may become an increasingly crucial institutional force to rely on. All things being equal, a regimen of judicial deference to the political branches makes sense, but the times call for more careful discernment about when to defer and a reassessment of the view of Scalia-type judicial “conservatives” that traditional rights not specifically in the text of the Constitution or Bill of Rights are somehow not valid or fundamental. Nor should they continue to think that respect for federalism means that anything should be allowed to go, even if it deeply offends the natural law and the norms of civilization, just because it was adopted at the state-level.

Stephen M. Krason


Stephen M. Krason's "Neither Left nor Right, but Catholic" column appears monthly (sometimes bi-monthly) in Crisis Magazine. He is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists. He is the author, most recently, of The Transformation of the American Democratic Republic (Transaction Publishers, 2012), and editor of three volumes: Child Abuse, Family Rights, and the Child Protective System (Scarecrow Press, 2013) and The Crisis of Religious Liberty (Rowman and Littlefield, 2014); and most recently, Challenging the Secular Culture: A Call to Christians (Franciscan University Press). His latest book is Catholicism and American Political Ideologies (Hamilton Books). He is also the author of a new novel, American Cincinnatus.

  • Assyrian

    The Supreme Court was already making public policy in the late 19th century when it elevated the legal status of the corporation to one that wields immense power without accountability. The ensuing transformation of American and global society has been immense – for the worse.
    Why do those who lament the Supreme Court’s 20th century judicial activism never lament the Court’s 19th century activism on behalf of corporate power?

    • Guest

      The author stated not all things labeled as activism are wrong.

    • Ita Scripta Est

      Because “free market” activism is okay apparently. Judicially-speaking conservatives are up the creek with out a paddle, since they are now more or less committed to the “originalist school.”

    • Menschenrechte

      If you are referring to Lochner v. New York , that case was decided in 1905 (i.e. early 20th century). Lochner, incidentally, was criticized by none other than Robert Bork and Edwin Meese, so saying that originalists “never lament” the era of economic-liberty activism is not quite accurate.

  • tom

    In 1973, the Supreme Court abrogated any pretense of Western Civilization’s foundational principle of the “Natural Law”. It trashed the Declaration of Independence. So, the die is cast as it joins the executive and legislative branches of America’s rotting Tree of Liberty. The barbarians aren’t just inside the gates, they’re running the show. Several wear black robes and smile for the birdie to make nice.

  • If we are relying on the courts to save our constitutional government, then all I can say is God Bless America- because nobody else gives a damn anymore.

    • tom

      Courts can’t save any nation; only “the people” can.

  • publiusnj

    This nation stands above all else for a grinding amorality that carries all discussions at the federal level because the Democrats love it and the Republicans are looking to “craft” an economic message free of any social content. In the story of our nation that is now being told, the majority view’s version of “religious freedom” has been set up as the motive factor for the English colonization of America (the only one that counts in constitutional jurisprudence), and all kinds of amorality are then justified as required by the First Amendment (sometimes another amendment is used such as the Fourth, but amorality is always the result). Of course, the old Pilgrims and Puritans would be abashed to discover what is being justified in their names. Nor is the current amorality what the Founding Fathers wanted, as the author points out, when they decided to leave the issue of establishments of religion up to the individual states. However, the question I always like to explore is to “what the boys fought and died for America on the Beaches of Normandy.” “Justice” Roberts and “Justice Kennedy,” do you think the boys fought and died on the Beaches of Normandy for their right to make love to the boy in the next foxhole or so their wives, girlfriends or insignificant others could kill the babies conceived from their love-making? Obviously not, but the Left tells us that is what freedom is all about.

  • BillinJax

    The shot in the back of America designed by Obama was delivered with a GIANT assist by Chief Justice (denied) John Roberts. His deciding vote was the single act of constitutional tyranny, whether under duress due to personal threats or a prideful display of ultimate authority to chastise a delusional electorate, in effect gave legal legitimacy to the most corrupt element of domestic political terrorism our country could
    possibly have elevated to power.

    He must be remembered as the one person who could have justifiably at least
    postponed our economical demise and slowed the progression of socialism so
    obviously desired by the democratic machine being used by the Obama regime. We
    will be rehashing the Kennedy assassination forever and debating who fired the
    shot from where. However, I submit there will be no doubt from here on out as
    to who it was who fired the fatal “shot in the back” of American
    constitutional justice allowing Barrack Hussein Obama to saddle his horse and
    sound the charge for his Marxist bureaucracy to diminish our once proud nation
    to a third world dictatorship with him as the supreme ruler.

    Justice Roberts, after listening to the Obama team arguing for months their
    health care scheme penalties were NOT a tax in order to sell the program to the
    public, for some still unbelievable reason single handily, knowing what the
    ramifications of a single payer system which Obama stated he wanted to
    eventually accomplish for his socialist transformation of America would do to
    the country, chose not to simply judge the case on those merits and thus allow
    for further debate on how to fix the system without a government taking over
    but rather to become an advocate for the president advising his lawyers the
    heavy fines within the AHA on individuals and companies should actually be
    considered a tax in order to make the bill legally constitutional.

    All those democratic Catholic politicians in Congress and those with key
    positions within the Obama administration who blindly marched lockstep with his
    socialist agenda could have been stopped in their tracks by a single vote on
    the part of John Roberts who we had considered a conservative Catholic up until
    that time.
    We are reminded once again of how even among the chosen there can be a Judas

    • Adam__Baum

      This is very simple. In the months leading up to the decision, the legitimacy, power and prestige of the Court was not so lightly threatened by Obama and that dreadful and despicable career politician and CINO, Pat Leahy.

      Roberts then allowed the dictate to be treated as a tax, despite the cited arguments to the contrary and the fact that if it were a tax, the legislation should have been introduced in the House of Representatives first.

      We wouldn’t want anybody to threaten the power and prestige of the SCOTUS, let alone their budget. Then again, perhaps the surveillance apparatus we are all now aware of, had “something” on Roberts.

    • LarryCicero

      If it is a tax- is it a direct tax, prohibited under Art1, Sec. 9.?

  • Arriero

    What has happened in the Supreme Court is a direct consequence of the Catholic Church (& the political forces that should represent it) losing the few ground it sometime had in the US. Is the story of liberals filling the vacuum of power left by real «conservative» forces. The anti-government-per-se rethorics are doing a lot of harm, allowing others to fulfill their most ugly feelings and allowing clutter, both political and moral.

    We want a Church in the centre of the table, a Church with real power of decission and influence in shaping society following the Word of God. Otherwise, don’t expect political-nihilism to end, rather to enlarge itself.

    • tom

      The Church is largely made up of Lotus Eaters. Those who speak up are censored by their bosses in red.

  • Menschenrechte

    It is far from obvious that the Supreme Court was ever intended to enforce natural law against the states. For starters, the Constitution was originally designed to constrain federal, not state power. At the time of the founding, one would have more naturally looked to the state courts than the federal courts to check state power. Among the American colonies, Sir Edward Coke’s view that legislatures were constrained by common/natural law was still prevalent: “an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void” (Dr. Bonham’s Case 1610). To extent that anyone in the U.S. legal profession today still believes that courts have such a power, it is understood that this power consists of the ability of judges to use their professed discernment of ‘evolving social norms’ to overturn (rather than reinforce) the traditional legal/moral order. Incidentally, the so-called Catholic law schools are all too often among the leading proponents of this variety of ‘progressive’ judicial activism. To address this scandal, the Bishops might consider taking the truly novel and radical step of actually enforcing Ex Corde Ecclesiae. (But, don’t hold your breath waiting for that to happen).

  • Michael Paterson-Seymour

    Scalia J explained the position very succinctly:”The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects — but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course.”

    Scalia concludes his answer with this telling remark: “The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy; you want a king to decide what is right.” (Catholic News Service, June 14, 1996)

    • Menschenrechte

      An interesting quote. I wonder if Scalia meant that as a description of where America is today (or was in 1996) or where the founders intended it to be or as a description of a timeless, universal theory of “democracy.” I think it only works as a description of the totalitarian democracy that one finds in Europe and North America today. The forms of government that are prevalent today, however, are not something that the ancients (or even the early moderns) would have recognized as democracy. They would have called them rather ochlocracy, i.e. a tyranny of the majority. The ancients had a concept of democracy, but no a concept of a “state” or of “sovereignty,” so the notion of a legislative body with unlimited powers over anyone was unthinkable to them, except as a degenerate form (i.e. mob rule). Neither pre-modern nor early modern peoples were generally legal positivists. Legislatures, therefore, did not ‘make’ law. Like courts, they generally merely “found” or expounded upon or perhaps at most applied pre-existing law to current situations. Rulers ‘legislated’ within very narrow bounds marked out by inherited custom and natural law (as supplemented by divine revelation). Even the notion of ‘parliamentary sovereignty’ is a rather a late development in England (and one that was contested by e.g. Sir Edward Coke). I don’t think Scalia’s formulation even works as a description of the American founding. Does anyone (apart from Scalia, or even Scalia in more reflective moments) really think that the list of rights in the Bill of Rights is exhaustive. The 9th amendment would seem to make this rather clear: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Scalia’s remarks are probably best understood as part of his ongoing polemic against the disordered “rights” that have been fabricated by the U.S. courts over the past three quarters of a century, e.g. the U.S. Supreme Court’s perverse “right to privacy”, which it would have us believe extends to sodomy and abortion (compare that to Europe’s much more modest and authentic privacy rights set out in the Data Protection Directive). Krason’s concerns are rather different, being the states’ infringement of authentic parental rights that have been imbedded in the Western legal order since time immemorial.

      • Michael Paterson-Seymour

        Representative government introduces an element, unknown to antiquity.

        Those who invoke the “General Will” too often forget that Rousseau’s ideal had always been that of the Forest Cantons of his native Switzerland, with their Landesgemeinde, where the peasants of Glarus met under their trees, “to manage their affairs, making and unmaking officials, conferring and revoking powers. They were equal, because every man had exactly the same right to defend his interest by the guarantee of his vote. The welfare of all was safe in the hands of all, for they had not the separate interests that are bred by the egotism of wealth, nor the exclusive views that come from a distorted education.”

        Thus, he warned that “As soon as public service ceases to be the chief business of the citizens, and they would rather serve with their money than with their persons, the State is not far from its fall. When it is necessary to march out to war, they pay troops and stay at home: when it is necessary to meet in council, they name deputies and stay at home. By reason of idleness and money, they end by having soldiers to enslave their country and representatives to sell it.”

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  • Andrew Carlan

    Don’t blame what Obama has congered up. The Republican Party is more to blame since they should know better. And what they should know is Article 3 of the Constitution which divides the Supreme Court’s jurisdiction to hear cases between original jurisdiction and appellate jurisdiction. The former is written in stone, but the cases the Court hears under original jurisdiction are marginal. All the social issues come under appellate jurisdiction. And you want to know what? Congress has the power to limit the Courts jurisdiction to hear such cases. BTW, Congress can eliminate all the lower federal courts by a simple majority of both houses. Between 2002 and 2008 the Republicans controlled both houses. The Republicans talk the talk but they don’t walk the walk.

    • Art Deco

      Nice try at an apologia, but Senate rules require a supermajority to enact legislation.