Restraining “Judicial Activism of the Most Pernicious Sort”

As Mark Twain said of the weather, people grumble a lot about federal courts, but nothing is done about them.  For instance, when the Supreme Court upheld Obamacare’s individual mandate as a tax in June 2012, Jim Huffman, dean emeritus of Lewis & Clark Law School, complained the ruling was “judicial activism1 of the most pernicious sort.” Huffman offered no solutions.

I have no suggestions for the weather.  However, a determined president and Congress can moderate an activist judiciary through legislation and without amending the Constitution or waging political war over individual court nominees.

Politicians have attempted to restrain the judiciary on a few occasions in America’s history. Two centuries ago, President Thomas Jefferson and his backers in Congress abolished half of the federal judgeshipsPresident John Adams, who served before Jefferson and was Jefferson’s political rival, had created and hurriedly filled the judgeships in Adams’ last days in office.  The Supreme Court conceded that Congress could constitutionally shrink the court system and lay off judges.

Also, Congress and various presidents changed the Supreme Court’s size several times during America’s first 100 years, before leaving it at nine members.  In 1937, President Franklin Roosevelt even pushed a bill to expand the Supreme Court to as many as 15 members so he could “pack” the bigger court with his picks.  FDR’s “court-packing” plan failed in Congress, but it helped produce an immediate shift in the Supreme Court’s treatment of his New Deal programs.

More recent moves to alter the judiciary’s structure or powers have been largely ineffectual.  Sporadic calls for a constitutional amendment to limit Supreme Court justices’ terms have gone nowhere.  And to no avail, politicians have trumpeted proposed constitutional amendments to override specific Supreme Court decisions on such hot topics as flag-burning and corporate political funding.

The reality is that a constitutional amendment proposing a fundamental restructuring of the judiciary is unlikely to survive the rigorous amendment process.  Likewise, legislation that appears too radical has little chance of success.  Even a popular president like Franklin Roosevelt couldn’t persuade a sympathetic Congress to pass his court-packing bill.

However, less-ambitious legislative efforts might fare better, and their cumulative effect on constitutional jurisprudence could be significant.  I suggest that the following options are worth considering as starting points.

1) Cut awards of attorneys’ fees to plaintiffs in constitutional cases

Section 1988 of Title 42 of the U.S. Code allows courts to award fees and expenses to plaintiffs who assert constitutional issues and win, even if only in part.  These awards help fund lawsuits that invite judicial activism.  This activism has been painfully evident in cases against local governments involving the First Amendment’s Establishment Clause.  For example, taxpayers in a small school district in Dover, Pennsylvania, were slapped with a $1 million fee to fund the efforts of the American Civil Liberties Union (ACLU) and Americans United for Separation of Church and State.  These two organizations helped sue the district for introducing “intelligent design” into the high schools’ science curriculum.

Eliminating or limiting fee awards in such cases would give challengers less economic incentive to bring marginal lawsuits where constitutional violations are unclear.  Also, cutting fee awards would reduce the financial risk for local and state governments that want to defend themselves.  Sincere litigants would still bring lawsuits resting on solid ground as before 1976, when Congress first authorized fee awards.

There’s no way to know how many fewer lawsuits would result if Congress cut fee awards.  But any decrease in the number of actions filed, or in the number settled or avoided because of the threat of big fee awards, would produce fewer opportunities for activist judges.  The elimination of attorneys’ fee awards should be popular with taxpayers, too.  Why should taxpayers pay the ACLU’s bills to sue their communities?

There have been unsuccessful attempts in Congress to eliminate fee awards in some circumstances, notably in Establishment Clause cases.  However, grassroots groups such as the American Legion have supported the idea.  It could gain enough support to pass in a Republican-controlled Congress.

2) Revise courts’ jurisdiction

Article III, Section 2 of the Constitution invests the Supreme Court with the power to review lower court decisions, but “with such Exceptions, and under such Regulations as the Congress shall make.”  This provision gives Congress wide latitude to control the Supreme Court’s workflow by setting appellate boundaries.  For several reasons, the Supreme Court’s annual production of decisions already has fallen off sharply.  In the past decade the justices have decided roughly 80 cases a year, about half as many as their predecessors produced during the 1940s.  Congress could trim the number of decisions even further.  For example, Congress could even bar the Supreme Court from hearing appeals from any lower-court decisions regarding a local or state governmental act.

Article III also lets Congress determine the jurisdiction of lower federal courts.  As Alexander Hamilton wrote in the Federalist Papers (No. 82), “Whether their [lower courts’] authority shall be original or appellate or both is not declared.  All this seems to be left to the discretion of the legislature.” Accordingly, Congress can assign certain types of cases to specific types of federal courts.  As it did with actions under the federal Voting Rights Act, Congress could require that lawsuits challenging state or local laws on constitutional grounds be heard by a multi-judge panel instead of a single district judge.  Congress could further require a unanimous decision to overturn a state or local law.  Congress could also mandate that certain issues be adjudicated by a jury and not decided by a judge.  For instance, let a jury of reasonable citizens and not a judge decide whether a cross placed by a veterans’ group at a war memorial is a governmental endorsement of religion.

Furthermore, if it chose Congress could simply shift to state courts, and away from federal district courts, the exclusive authority to try lawsuits that challenge state and local actions according to the Establishment Clause or other constitutional provisions.  Federal courts haven’t always had such trial jurisdiction.  Except for a brief period from 1801 to 1802, Congress didn’t give federal courts “original” jurisdiction to try “federal question” cases until passage of the Judiciary Act of 1875.

Besides cutting attorneys’ fee awards and revising federal courts’ jurisdictional boundaries, there are many other measures available to Congress and the president if they want to control judicial activism.  Newt Gingrich, a 2012 presidential candidate for the Republican Party, identified a range of options during his campaign.  His suggestions ran the gamut from mild (“electing the right senators”) to bellicose (abolishing courts, slashing court budgets, threatening to impeach judges).  Even if ultimately unsuccessful, though, serious efforts by the other branches of government to rein in the judiciary might encourage some black-robed activists to exercise greater restraint.  Judges are all-powerful in their courtrooms, but Congress can make those courtrooms lonely places.


1 Judicial activism can be in the eye of the beholder.  I prefer the explanation of the Heritage Foundation’s Mike Kelsey regarding judicial activism in the context of constitutional questions.  A judicial activist is a judge who ignores the text and original meaning of the Constitution and instead substitutes what the judge believes is a more “enlightened” or updated view—that is, the judge’s preference.  In the context of statutory construction that doesn’t involve a constitutional question, I believe a judicial activist is one who, again, ignores a law’s text and its plain meaning to alter the law for a desired result.  In both contexts, activism means substituting the judge’s view of how things should be written for what is actually stated in the text at issue.  I don’t think a judge who strikes a legislative act that violates the Constitution’s text is an “activist.”  Such invalidation is the nature of judicial review.

Randy Quarles About Randy Quarles

Randy Quarles, a former Eleventh Circuit judicial clerk and editor-in-chief of the Alabama Law Review, practices law in Birmingham, Alabama. His new novel, Olsen’s Nation, lampoons ObamaCare. Follow him on Twitter.

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