Cries of “judicial activism” have been a staple of conservative criticism of the Supreme Court for decades. So it's not surprising that prominent conservative politicians and pundits have hurled the term at the Court after its decision in the same-sex marriage case, Obergefell v. Hodges.
In July, Sen. Ted Cruz held a hearing titled “With Prejudice: Supreme Court Activism and Possible Solutions,” at which he denounced Obergefell as “pop psychology” with “no basis in the text and history of the Constitution.”
But it is Cruz who strayed from the text and history of the Constitution, both in his histrionic criticism of Obergefell and his suggestion that the cure for America's constitutional ills is an even more inert judiciary.
Cruz's most fundamental error lay in the premise of the hearing itself: The most pressing threat to constitutionally limited government today is not “judicial activism” but reflexive judicial deference to the political branches.
Cruz's troubles began with his opening statement, in which he discussed several examples of the Court's “imperial tendencies” over the years and offered as one example the Court's 1905 ruling in Lochner v. New York.
In Lochner, Cruz said, “an activist Court struck down minimum wage laws,” vindicating a right “that has no basis in the language of the Constitution.”
But Cruz is wrong on both the facts and the law. Lochner was not a minimum-wage case; rather, it involved a New York law that restricted the number of hours bakers could work in any given day or week.
Moreover, in striking down the law, the Lochner Court simultaneously rebuffed an attempt by unionized bakeries to suppress competition and vindicated the bakers' right to earn an honest living. That right certainly does have a basis in the language of the Constitution, not to mention centuries of common law and the Founders' Enlightenment-inspired political theory.
Cruz's mischaracterization of Lochner anticipated more profound errors.
Throughout the hearing, Cruz adopted a narrow, race-focused interpretation of the Fourteenth Amendment. Thus, he sought to distinguish Obergefell from Loving v. Virginia, the case in which the Court invalidated a ban on interracial marriage, stating that the Fourteenth Amendment “explicitly says government can't discriminate based on race.”
Cruz's suggestion that the Fourteenth Amendment is purely about race cannot be squared with text or history. It was designed to eliminate a culture of majoritarian tyranny in the Reconstruction South, in which free blacks and their white supporters were deprived of their most basic individual rights, including the rights to speak, own firearms, worship, work, and (yes) marry.
The Fourteenth Amendment was framed in broad terms to secure the natural and civil liberty of all Americans — that is why the Due Process of Law and Equal Protection Clauses refer simply to “person[s],” with no mention of race. The Court has thus correctly invalidated government classifications based on sex, alienage, legitimacy of birth — and sexual orientation — that serve no constitutionally proper end.
Has the judicial enforcement of these broad constitutional protections led to an epidemic of judicial activism, as Cruz claims?
Hardly. Of the 15,817 laws that Congress enacted between 1954 and 2002, the Court struck down less than two-thirds of one percent; in any given year, it strikes down just three out of every 5,000 state and federal laws passed. Does it really seem likely that the Feds and the States have a .9994 constitutional batting average?
On the contrary, the Supreme Court has consistently turned a blind eye while Congress exercises powers not granted to it, often delegating those powers to armies of unelected, unaccountable bureaucrats. Such judicial abdication, often wrongly praised by conservatives as “judicial restraint,” necessarily leads to unrestrained government.
One need not agree with the result in Obergefell to appreciate the value of a judicial approach that declines to place a thumb (or elbow) on the government's side of the scales. The Framers established an independent judiciary to serve, in James Madison's words, as “an impenetrable bulwark against every assumption of power in the legislative or executive.”
The judiciary cannot perform that vital function if judges do not impartially evaluate and, when proper, invalidate legislation, even in controversial and consequential cases.
We can have a judiciary that reflexively defers to the political branches or we can have constitutionally limited government — but we cannot have both. As for Cruz's charges of “activism,” they should be dismissed — with prejudice.