David Savage, who covers the Supreme Court for the Los Angeles Times, had an opinion piece in that paper yesterday that raised the question whether, after just one term, we could conclude anything about whether Chief Justice John Roberts is a “judicial activist.” Savage’s argument is almost as silly as the academic study I criticized here at NRO a couple of weeks ago. He seems to have no other definition of activism than something like “using judicial review with a big impact,” though at one point, in turning a clever phrase (asking whether Roberts will “seek the right result, or the right’s result?”), he seems dimly aware that the proper question is not the impact of a ruling but whether it was correct.
Savage adduces exactly two pieces of evidence—Roberts’ votes in two cases—as evidence that the chief justice might be a judicial activist. I’ll take his second example first, Rapanos v. United States. Here Roberts voted with Scalia, for a result Savage calls a “sharp pullback in the Clean Water Act of 1972.” One can agree or disagree with the position taken by these two justices (joined by Thomas and Alito), but the case for this being an “activist” position would have to rest on an argument that they got the law wrong, not that the impact of their victory would have been large. Savage writes that “with one extra vote, the Roberts court would have rewritten the scope of the Clean Water Act in its first term—not the act of a modest Supreme Court.” But of course the argument in the case that persuaded Roberts et al. was that the Army Corps of Engineers had rewritten the Act already. And isn’t it worth noticing that Rapanos is a case of statutory construction, not of basic constitutional principles? (Yes, it implicated commerce-clause principles—but the case is most significantly about the scope of an act of Congress.) Judicial activism hits its stride in the constitutional cases. In statutory ones, Congress has a ready recourse through ordinary legislation.
Much the same could be said about Savage’s other example, Gonzales v. Oregon, which upheld the state’s blessing on physician-assisted suicide through the use of prescription or otherwise federally-controlled drugs. Savage writes that if the dissenters Roberts joined had had their way, the Court would have “taken away the state’s traditional power to regulate the practice of medicine and upheld a single federal officer’s new interpretation of a long-standing federal statute that had not been endorsed by Congress.” Another way to describe their position is that if they’d had their way, the Attorney General of the United States would have been permitted to act on a perfectly reasonable interpretation of a law he was charged with enforcing, preempting the novel policy of one outlier state that was bent on frustrating a concededly valid federal policy of regulating interstate commerce in powerful drugs used in the medical profession. As a preemption case, Gonzales presented the Court with one of those situations where the charge of “activism” could be levelled no matter what the outcome, since the policy of either the federal government or the state would have to give way. Since it is customary for the Court to defer more readily to the other branches of the federal government than to one of the states, it’s far more persuasive to call the justices in the winning position for Oregon the activists, not the justices in the losing bloc who voted for federal policy to win the day.
It helps to state the views of both sides in these cases at their strongest, doesn’t it? I would be more inclined to side with Chief Justice Roberts in Gonzales than in Rapanos, but the point is to weigh the merits, measure the best and worst in the arguments on either side, and not base judgments on who is an “activist” on such unserious considerations as whether a case would have had a big impact or upset someone’s settled expectations.