U.S. Supreme Court Justice Samuel A. Alito Jr. generated a ripple last week when he announced in a speech
to the conservative Manhattan Institute for Policy Research that he would likely not attend next January's State of the Union Address. At this year's edition of the venerable speech, you may remember, Justice Alito appeared visibly perturbed
when President Barack Obama, standing just a few feet away on Capitol Hill, sharply criticized
the Court's 5-4 newly minted ruling in the Citizens United case. That ruling
, you also may remember, upset decades of legal precedent limiting the breadth of corporate speech rights under the First Amendment.
In Citizens United, Justice Alito didn't just vote with his conservative colleagues against the McCain-Feingold campaign finance law and in favor of sweeping constitutional rights for politically minded corporations. He also voted, earlier, for a proactive expansion of the scope of the case itself -- to go beyond the statutory dispute the parties initially had brought before the Court in order to turn the case into one of constitutional dimensions. Indeed, one of the most pervasive criticisms of the Court's majority in Citizens United is the perception that the Roberts Court
unilaterally reached out of its way to impose a new constitutional rule that didn't need
to be imposed to resolve the case.
After watching Justice Alito's speech to the ideological faithful -- the host introduced the George W. Bush appointee as one of a "small band of like-minded justices" who "are a critical and much-appreciated bulwark of our freedom" -- it seems to me the big story from the event isn't his social plan for January but rather his comments on the art and practice of judging. The justice who's been sharply criticized lately by liberals and progressives for improper "judicial activism" in
Citizens United (and other cases) tried but failed to explain the concept of such "activism" in a coherent way. In retrospect, perhaps he would have been better off candidly paraphrasing Justice Potter Stewart
's great line on pornography: "I can't define judicial activism but I know it when I see it."
Like the late Chief Justice William Rehnquist half a decade ago
, Justice Alito is dissatisfied with the language employed by warriors in the polemic battle over the phrase "activist judge." "We have a heated debate about the role of judges," Alito told guests, "but no accepted vocabulary that defines exactly what the fighting is about. This terminological confusion, I submit to you, is not a superficial phenomenon." Indeed it must not be. Because over the course of the next 45 minutes or so, Justice Alito failed to lay out his own workable definition of the phrase "judicial activism." The best he could do was to define the concept in the negative: "Judges are not scientists," he said, "and they should not be constitutional rubber-stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution and they should not aim to be theorists or crowd pleasers."
Does that help us define the contours of judicial activism? Not so much. It's a good sound bite -- some media types used the "crowd pleasers" line -- but it begs the question Justice Alito asked. As we saw in Citizens United, what is "grounded in the Constitution" depends in many close cases upon the eye of the beholder. Four justices in that case ruled that the corporate speech doctrine embraced by the Court's majority was not
"grounded in the Constitution." Here you could make the argument, as so many do who lose before the Supreme Court, that might makes right; that if you have five votes on the Court you get to decide what is "grounded in the Constitution" or not. In any event, whether or that cynical view is legitimate, it still doesn't help us get closer to easing Justice Alito's "terminological" concerns about the battle over judicial activism.
Justice Alito tried a populist approach, too. "The Constitution doesn't always mean what we would like it to mean. The statutes that Congress enacts do not always mean what we would like them to mean. That is exactly what we mean by the rule of law," Justice Alito said. Editorial writers "may not appreciate the difference between what the Constitution means, and what one might like it to mean," he said, "[but] ordinary people still do get this critical distinction. The assault on the traditional idea of the role of judges began more than 100 years ago but ordinary people stubbornly hold on to some old-fashioned beliefs and one of these is the idea that the Constitution means something, statutes mean something, and the role of the judge is to interpret and apply the law as written."
The thought of "ordinary people" with "old-fashioned beliefs" understanding "that the Constitution means something"-- while reporters and the rest of America presumably don't -- sounds less like a reasonable description of the rule of law and more like dicta from a Glenn Beck monologue. Everyone agrees that "the Constitution means something," that statutes mean something, and the role of the judge is to interpret and apply the law." Where people reasonably disagree is over what our ambiguously worded legal cornerstones mean and how the many and memorable ambiguities and conflicts within them ought best be resolved. Besides, in the Citizens United case, contemporary polls
suggested that 80 percent of Justice Alito's "ordinary people" believed the Court's decision to be wrong or, as he might put it, "not grounded in the Constitution."
If Justice Alito wants to make a meaningful contribution to the debate over the meaning and role of judicial activism in contemporary American law, I challenge him to explain in detail the reasons why he believes the Court's Citizens United ruling this past January was not
the most obvious example of such "activism" since he came to the high court in early 2006. Such an explanation would help advance the modern debate over the phrase. And "ordinary people" everywhere might appreciate it, too.