Judicial Activism and Judicial Restraint

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JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

"Judicial activism" and "judicial restraint" are terms used to describe the assertiveness of judicial power. In no sense unique to the Supreme Court or to cases involving some construction of the Constitution, they are editorial summations of how different courts and different judges conduct themselves.

The user of these terms ("judicial activism" and "judicial restraint") presumes to locate the relative assertiveness of particular courts or individual judges between two theoretical extremes. The extreme model of judicial activism is of a court so intrusive and ubiquitous that it virtually dominates the institutions of government. The antithesis of such a model is a court that decides virtually nothing at all: it strains to find reasons why it lacks jurisdiction;it avows deference to the superiority of other departments or agencies in construing the law; it finds endless reasons why the constitutionality of laws cannot be examined. It is a model of government virtually without useful recourse to courts as enforcers of constitutional limits.

The uses of "judicial activism" and "judicial restraint," however, are not entirely uniform. Often the terms are employed noncommittally, that is, merely as descriptive shorthand to identify some court or judge as more activist or more restrained than some other, or more than the same court formerly appeared to be. In this sense, the usage is neither commendatory nor condemnatory. Especially with reference to the Supreme Court, however, the terms are also used polemically. The user has a personal or professional view of the "right" role of the Court and, accordingly, commends or condemns the Court for conforming to or straying from that right role. Indeed, an enduring issue of American constitutional law has centered on this lively controversy of right role; procedurally and substantively, how activist or how restrained ought the Supreme Court to be in its use of the power of constitutional judicial review ?

Ought that Court to confront the constitutionality of the laws as speedily as opportunity affords, the better to furnish authoritative guidance and settle political controversy in keeping with its unique competence and function as the chief constitutional court of the nation? Or ought it, rather, to eschew any unnecessary voluntarism, recognizing that all participants in government are as bound as the Court to observe the Constitution and that the very insularity of the Supreme Court from representative government is a powerful reason to avoid the appearance of constitutional arrogance or constitutional monopoly? In brief, what degree of strict necessity should the Supreme Court require as a condition of examining the substantive constitutionality of government acts or government practices?

Substantively, the issues of "proper" activism or proper restraint are similar. When the constitutionality of governmental action is considered, what predisposition, if any, ought the Supreme Court to bring to bear? Should it take a fairly strict view of the Constitution and, accordingly, hold against the constitutionality of each duly contested governmental act unless the consistency of that act with the Constitution can be demonstrated virtually to anyone's satisfaction? Or, to the contrary, recognizing its own fallibility and the shared obligation of Congress (and the President and every member of every state legislature) fully to respect the Constitution as much as judges are bound to respect it, should the Court hold against the constitutionality of what other departments of government have enacted only when virtually no reasonable person could conclude that the act in question is consistent with the Constitution?

Disputes respecting the Supreme Court's procedural judicial activism (or restraint) and substantive judicial activism (or restraint) are thus of recurring political interest. Most emphatically is this the case with regard to judicial review of the constitutionality of legislation, as distinct from nonconstitutional judicial review. For here, unlike activism on nonconstitutional issues (such as the interpretation of statutes), the consequences of an adverse holding on the merits are typically difficult to change. An act of Congress, held inapplicable to a given transaction, need only be approved in modified form to "reverse" the Supreme Court's impression. On the other hand, a holding that the statute did cover the transaction but in presuming to do so was unconstitutional is a much more nearly permanent boundary. It may be overcome only by extraordinary processes of amending the Constitution itself (a recourse successfully taken during two centuries only four times), or by a reconsideration and overruling by the Supreme Court itself (an eventuality that has occurred about 130 times). Thus, the special force of adjudication of constitutionality, being of the greatest consequence and least reversibility, has made the proper constitutional activism (or proper restraint) of the Supreme Court itself a central question.

An appraisal of the Supreme Court in these terms involves two problems: the activism (or restraint) with which the Court rations the judicial process in developing or in avoiding occasions to decide constitutional claims; and the activism (or restraint) of its standards of review when it does decide such claims.

The Supreme Court's own description of its proper role in interpreting the Constitution is one of strict necessity and of last resort. In brief, the Court has repeatedly held that the Constitution itself precludes the Court from considering constitutional issues unless they are incidental to an actual case or controversy that meets very stringent demands imposed by Article III. In addition, the Court holds that prudence requires the complete avoidance of constitutional issues in any case in which the rights of the litigants can be resolved without reference to such an issue.

In 1982, in valley forge christian schools v. americans united, Justice william h. rehnquist recapitulated the Court's conventional wisdom. Forswearing any judicial power generally to furnish advice on the Constitution, and denying that the Supreme Court may extend its jurisdiction more freely merely because constitutional issues are at stake, he declared: "The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity to "adjudge the legal rights of litigants in actual controversies." Even when the stringent prerequisites of jurisdiction have been fully satisfied, moreover, "[t]he power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy." For emphasis, he added, "The federal courts were simply not constituted as ombudsmen of the general welfare. [Such a philosophy] has no place in our constitutional scheme."

In so declaring, Justice Rehnquist was relying substantially upon a similar position adopted by Chief Justice john marshall in marbury v. madison (1803). Explaining that the Court's determination of constitutional questions was but an incident of its duty to pass upon legal questions raised in the due course of litigation, in no respect different from its duty when some statutory issue or common law question might likewise be presented in a case, Marshall had insisted: "The province of the Court is, solely, to decide on the rights of individuals," and not to presume any larger role.

Accordingly, though a constitutional issue may be present, if the dispute in which it arises does not otherwise meet conventionally strict standards of standing, ripeness, genuine adverseness of parties, or sufficient factual concreteness to meet the demands of a justiciable case or controversy as required by Article III, the felt urgency or gravity of the constitutional question can make no difference. In steering a wide course around the impropriety of deciding constitutional questions except as incidental to a genuine adversary proceeding, moreover, the Court has also declared that it will not entertain collusive suits. As Marshall declared in Marbury, "it never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of a legislative act." Similarly, if during the course of genuine litigation the grievance has become moot in light of subsequent events, it must then be dismissed insofar as there remains no necessity to address the original issue.

When, moreover, all requisites of conventional, genuine litigation remain such that adjudication of the parties' rights is an unavoidable judicial duty, the Court has still insisted that it should determine whether the case can be disposed of without addressing any issue requiring it to render an interpretation of the Constitution itself. Accordingly (within the conventional wisdom), even with respect to disputes properly before it, well within its jurisdiction and prominently featuring a major, well-framed, well-contested constitutional question, the Supreme Court may still refuse to address that question. In his famous concurring opinion in ashwander v. tennessee valley authority (1936), Justice louis d. brandeis insisted that constitutional questions were to be decided only as a last resort: "When the validity of an act of Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Indeed, Brandeis continued, the Court will not "pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Moreover, though there may be no other ground, if the constitutional question arises at the instance of a public official, "the challenge by a public official interested only in the performance of his official duty will not be entertained." Even when the issue is raised by a private litigant, his challenge to the constitutionality of a statute will not be heard "at the instance of one who has availed himself of its benefits."

Self-portrayals of the Court as a wholly reluctant constitutional tribunal that is not an oracle of constitutional proclamation but a court of law that will face constitutional questions only when a failure to do so would involve it as a tribunal in an unconstitutional oppression of a litigant go even further. A litigant may have much at stake, and nothing except his reliance upon some clause in the Constitution may remain to save him from jeopardy. Still, if the clause in the Constitution is deemed not to yield objective criteria adequate to guide its application by the Court, the Court may decline to attempt to fix any meaning for the clause on the basis that it is nonjusticiable. (See political questions.) Similarly, if the relief requested should require the Court to consider an order against the Congress itself, an order the Court cannot be confident would be obeyed and which it is without resources otherwise to enforce, it may refuse to consider the case. Identically, if an adjudication of the constitutional question, though otherwise imperative to the litigant's case, might involve conflict with the President respecting decisions already made, communicated to, and relied upon by other governments, the case may also be regarded as nonjusticiable.

In rough outline, then, these are the principal elements of the orthodoxy of extreme judicial restraint. Consistent with them, even when the Court does adjudicate a constitutional question, its decision is supposed to be "no broader than is required by the precise facts." Anything remotely resembling an advisory opinion or a gratuitous judicial utterance respecting the meaning of the Constitution is to be altogether avoided.

Although this combination of Article III requirements and policies has characterized a large part of the Court's history (most substantially when the constitutional questions involved acts of Congress or executive action), the Court's practice has not, in fact, been at all uniform. Collusive suits have sometimes been entertained, and the constitutional issues at once examined. Public officials sometimes have been deemed to have sufficient standing to press constitutional questions, though they have had no more than an official interest in the matter. Holdings on the Constitution occasionally have been rendered in far broader terms than essential to decide the case, often for the advisory guidance of other judges or for the benefit of state or local officials. When the constitutional issue seemed clear enough and strongly meritorious, parties placed in positions of advantage solely by force of the very condition of which they later complained on constitutional grounds have not always been estopped from securing a decision. On occasion when third parties would be unlikely or unable to raise a constitutional claim on their own behalf, moreover, other litigants deemed suitable to represent their claim have been allowed to proceed on the merits of the constitutional issues. And some utterly moot cases have been decided on the merits of their constitutional questions on the paradoxical explanation that unless the moot cases were treated as still lively, then conceivably the merits of the constitutional issues would forever elude judicial review. Indeed, the nation's most famous case, Marbury v. Madison, was in many respects an example of extreme procedural activism despite its disclaimer of strict necessity.

At issue in Marbury's case was the question of the Supreme Court's power to hear the case in the first instance, within its original jurisdiction, rather than merely on appeal. The statute William Marbury relied upon to demonstrate his right to commence his action in the Supreme Court was altogether unclear as to whether it authorized his suit to begin in the Supreme Court. Avoidance of the necessity of examining the constitutionality of the statute was readily available merely by construing the statute as not providing for original jurisdiction: an interpretation thus making clear that Marbury had sued in the wrong court, resulting in his case's being dismissed for lack of (statutory) jurisdiction and obviating any need to say anything at all about the constitutionality of an act of Congress.

Rather than pursue that course, however, Chief Justice Marshall "actively" interpreted the act of Congress, that is, he interpreted it to draw into issue its very constitutionality and then promptly resolved that issue by holding the act unconstitutional. Beyond that, rather than be content to dismiss the case for lack of either statutory or constitutional jurisdiction, the Chief Justice also (and quite gratuitously) addressed every other question raised by the complaint, including Marbury's right to the public office he sought, the appropriateness of the remedy he asked for, the illegality of the secretary of state's refusal to give it to him, and the lack of immunity from such suits by the secretary of state. Each of these other issues was of substantial controversy. Several of them raised substantial constitutional questions. Marshall resolved all in an opinion most of which was purely advisory, that is, of no necessity in light of the ultimate holding, which was that the Court was (constitutionally) without power (jurisdiction) to address the merits of the case at all. Marshall addressed all these questions on the basis of a factual record supplied principally on affidavit of his own brother. Still, Marshall, far from recusing himself on that account or on account of his own participation as the secretary of state who failed to deliver Marbury's commission, fully participated in the case, voted, and wrote the opinion for the Court. In these many respects, the case of Marbury v. Madison was an extraordinary example of extreme procedural activism. Its resemblance to what the Court has otherwise said (as in the Brandeis Ashwander guidelines or the Valley Forge case) is purely ironic. Indeed, the unstable actual practices of the Court which has so often described its institutional role in constitutional adjudication as one of the utmost procedural restraint, while not uniformly adhering to that description, have contributed to the Court's great controversiality in American government.

As we have seen, procedural activism (and restraint) has consisted principally of two parts. The first part is the rigor or lack of rigor with which the Court has interpreted the limitation in Article III of the Constitution, according to which the use of the judicial power can operate solely on "cases and controversies." The second part is the extent to which the Court has also adopted a number of purely self-denying ordinances according to which it will decline to adjudicate the merits of a constitutional claim in any case in which a decision can be reached on some other ground.

In contrast, substantive activism (and restraint) has consisted principally of three parts, each reflecting the extent to which the Court has interpreted the Constitution either aggressively to invalidate actions taken by other departments of government, or diffidently to acquiesce in these actions. The first part pertains to the Court's substantive interpretations of the enumerated and implied powers of the other departments of the national government, that is, the powers vested by Article I in Congress and the powers vested by Article II in the President. The second part pertains to the Court's interpretation of the Constitution as implicitly withdrawing from state governments a variety of powers not explicitly forbidden to them by the Constitution. And the third part pertains to the Court's interpretations of those clauses in the Constitution that impose positive restrictions on the national and the state governments, principally the provisions in Article I, sections 9 and 10, in the bill of rights, and in the fourteenth amendment. Although there may be no a priori reason to separate the substantive activism and restraint of the Supreme Court into these three particular categories, it is nonetheless practically useful to do so: overall, the Court has responded to them quite distinctly. Indeed, in practice, despite very great differences among particular Justices, the general tendency has been to develop a constitutional jurisprudence of selective activism and selective restraint.

In respect to constitutional challenges to acts of Congress for consistency with Article I's enumeration of affirmative powers, the Court's standard of review has generally been one of extraordinary restraint. With the exception of the first three and a half decades of the twentieth century, the Court has largely deferred to Congress's own suppositions respecting the scope of its powers. During the first seventy-five years of the Constitution, for instance, only two acts of Congress were held not to square with the Constitution. During the most recent forty years (a period of intense and extremely far-reaching national legislation), again but two acts have been held to fail for want of enumerated or implied constitutional authorization. Indeed, even when the comparison is enlarged to include cases challenging acts of Congress not merely for want of enacting authority but rather because they were alleged to transgress specific prohibitions (for example, the first amendment restriction that Congress shall make no law abridging the freedom of speech), still the record overall is one of general diffidence and restraint. Over the entirety of the Court's history, scarcely more than 120 acts of Congress have been held invalid.

An influential rationale for such restraint toward acts of Congress was set forth in 1893, in an essay by james bradley thayer that Justice felix frankfurter subsequently identified as uniquely influential on his own thinking as a judicial conservative. Thayer admonished the judiciary to bear in mind that the executive and legislative departments of the national government were constitutionally equal to the judiciary, that they were equivalently bound by oath of office to respect the Constitution, and that each was a good deal more representative of the people than the life-tenured members of the Supreme Court. Accordingly, Thayer urged, the Court should test the acts of coordinate national departments solely according to a rule of "clear error." In brief, such acts were to be examined not to determine whether their constitutionality necessarily conformed to the particular interpretation which the judges themselves might independently have concluded was the most clearly correct interpretation of the Constitution. Rather, such acts should be sustained unless they depended on an interpretation of constitutional power that was itself manifestly unreasonable, that is, an interpretation clearly erroneous.

Thayer's rule provided a strong political rationale for extreme judicial deference in respect to enumerated and implied national powers. Of necessity, however, it also tended practically to the enlistment of the judiciary less as an independent guardian of the Constitution (at least in respect to the scope of enumerated and implied powers) than as an institution tending to validate claims of national authority against state perspectives on the proper boundaries of federalism. It is a thesis that has periodically attracted criticism on that account, but it does not stand as the sole explanation for the general restraint reflected in the Supreme Court's permissive construction of national legislative and executive powers. Rather, without necessarily assuming that Congress and the President possess a suitably reliable detachment to be the presumptive best judges of their respective powers, decades before the appearance of Thayer's essay the Supreme Court had already expressed a separate rationale: a judicial rule of broad construction respecting enumerated national powers.

The most durable expression of that rule is reported in a famous obiter dictum by Chief Justice John Marshall. In mcculloch v. maryland (1819), Marshall emphasized to his own colleagues, the federal judges: "We must never forget, that it is a constitution we are expounding." In full context, Marshall plainly meant that it was a Constitution for the future as well as for the present, for a nation then quite small and new but expected to become much more considerable. To meet these uncertain responsibilities, Congress would require flexibility and legislative latitude. Thus, powers granted to it by the Constitution should be read generously.

The point was expanded upon more than a century later by Justice oliver wendell holmes, in missouri v. holland (1920), defending the judiciary's predisposition to interpret the treaty power very deferentially: "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.… [I]t has taken a century and has cost their successors much sweat and blood to prove that they created a nation." This rule of generous construction, like Thayer's rule of "clear error," tends to support a judicial policy of substantive interpretative restraint. And while not free of criticism on its own account (as federalism critics will tend to fault it as unfaithful to their view of the extent to which substantive legislative authority was meant to be reserved to the states), it is not contingent upon doubtful assumptions respecting the capacity of the President or of the Congress fairly to assess the scope of powers they are given by the Constitution. Arguably, it is as well that this policy of judicial restraint not be made to rest on such assumptions. Although reference to the early constitutional history of the United States tends to support Thayer's thesis (early members of Congress included many persons who had participated in the shaping of the Constitution and who frequently debated proposed legislation in terms of its consistency with that Constitution), two centuries of political change have weakened its suppositions considerably. Persons serving in Congress are far removed from the original debates over enumerated powers; the business of Congress is vastly greater than it once was; the electorate is itself vastly enlarged beyond the limited numbers of persons originally eligible to vote; and such attention as may be given within Congress to issues of constitutionality is understandably likely to be principally political in its preoccupations rather than cautious and detached. Thus, the Marshall rule of generous construction in respect to national powers, rather than the Thayer proposal (of yielding to not-unreasonable interpretations by Congress), tends more strongly to anchor the general policy of judicial restraint in this area. (When the issue had been one of conflict between Congress and the President, on the other hand, the Court has tended to defer to the position of Congress as first among equals.)

In contrast, there is less evidence of a consistent policy of substantive judicial restraint in the Supreme Court's examination of state laws and state acts. Here, to the contrary, the role of the Court has emphatically been significantly more activist, procedurally as well as substantively. The Court will more readily regard the review of governmental action as within the judicial power of the united states in the litigation of state laws. A principal example is the ease with which state taxpayer suits impugning state laws on federal constitutional grounds will be deemed reviewable in the Supreme Court, when in most instances an equivalently situated federal taxpayer is deemed to have inadequate standing in respect to an act of Congress. In addition, the Court has interpreted the Constitution to create a judicial duty to determine the constitutionality of certain kinds of state laws, though the clauses relied upon do not themselves expressly confer such a judicial duty (or power) and speak, rather, solely of some preemptive power in Congress to determine the same matter. For instance, the commerce clause provides merely that Congress shall have power to regulate commerce among the several states. But in the absence of congressional regulation, the Court has actively construed the clause as directing the federal courts themselves to determine, by their own criteria, whether state statutes so unreasonably or discriminatorily burden interstate commerce that they should be deemed invalid by the courts as an unconstitutional trespass upon a field of regulation reserved to Congress.

Here also the rationales have differed, and indeed not every Supreme Court Justice has embraced either rationale. (Justice hugo l. black, for instance, preferring a constitutional jurisprudence of "literal" interpretation, generally declined to find any basis in the commerce clause for judicial intervention against state statutes.) In part, the substantive activism of the Court has been explained by a "political marketplace" calculus that is the obverse of Thayer's rule for deference to Congress. According to this view, as the state legislatures are not equal departments to the Supreme Court (in the sense that Congress is an equal department), and as national interests are not necessarily as well represented in state assemblies as state interests are said to be represented in Congress (insofar as members of Congress are all chosen from state-based constituencies), there are fewer built-in political safeguards in state legislatures than in Congress. To the extent of these differences, it is said that there is correspondingly less reason for courts to assume that state legislatures will have acted with appropriate sensitivity to federal constitutional questions and, accordingly, that there is more need for closer judicial attention to their acts. The sheer nonuniformity of state legislation may be of such felt distress to overriding needs for greater uniformity in a nation with an increasingly integrated economy that a larger measure of judicial activism in adjudicating the constitutional consistency of state legislation may be warranted in light of that fact. Something of this thought may lie behind Justice Holmes's view respecting the relative importance of constitutional review itself: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states." Finally, more activist substantive review of state laws has been defended on the view that, assuming Congress itself may presume to substitute a uniform rule or otherwise forbid states to legislate in respect to certain matters, the frequency with which state statutes may be adopted and the resulting interference they may impose upon matters of national importance prior to any possibility of corrective congressional action require that the federal courts exercise an interim and activist responsibility of their own. In any event, this much is clear. In respect to substantive standards of constitutional review and challenges to state laws on grounds that they usurp national authority, the overall position of the Supreme Court has been that of an activist judiciary in umpiring the boundaries of federalism.

Finally, and most prominently within the last half-century, selective judicial activism has made its strongest appearance in the judicial review of either federal or state laws that, in the Court's view, bear adversely on one or more of the following three subjects: participation in the political process, specific personal rights enumerated in the Bill of Rights, and laws adversely affecting " discrete and insular minorities." The scope of these respective activist exceptions (to the general rule of procedural and substantive restraint) is still not entirely settled. Indeed, each is itself somewhat unstable. Nonetheless, the indication of more aggressive, judicially assertive constitutional intervention in all three areas was strongly suggested in a footnote to united states v. carolene products co. (1938). There, the Court suggested that the conventional "presumption of constitutionality" would not obtain, and that "searching judicial inquiry" would be applied to the review of laws that, on their face, appeared "to be within a specific prohibition of the Constitution," or to "restrict those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation," or to bear heavily on "discrete and insular minorities" suffering from prejudice likely to lead to their neglect in the legislative process.

In respect to the first of these categories, however, it is doubtful whether the standards applied by the Supreme Court should be defined as unconventionally activist at all. To the extent that a constitutional provision explicitly forbids a given kind of statute, its mere application by the Court scarcely seems exceptional. To the contrary, it would require an extreme version of "restraint" to do otherwise.

The second category (principally concerned with limitations on voting eligibility or with varieties of unfairness in representation) is differently reasoned. The Court has assumed generally that deference is ordinarily due the constitutional interpretations of legislative bodies because they are themselves representatives of the people (who have the greatest stake in the Constitution). But if the law in question itself abridges the representative character of the legislatures, it tends by that fact to undermine the entire foundation of judicial restraint in respect to all other legislative acts. As it tends thereby also to reduce the efficacy of the legislative process to repeal improvident legislation, such representation-reducing statutes ought to be severely questioned.

The third category (such legislation as bears adversely on insular and discrete minorities) has emerged as by far the most controversial and unstable example of modern judicial activism. Its theory of justification is one of rationing the activism of constitutional review inversely, again in keeping with the perceived "market failure" of representative government. And, up to a point, it is quite straightforward in keeping with that theory. Thus, when the numbers of a particular class are few and their financial resources insignificant, and when the class upon whom a law falls with great force is not well-connected but, to the contrary, seems left out of account in legislative processes (by prejudices entrenched within legislatures), the resulting market place failure of political power or ordinary empathy is felt to leave a gap to be filled by exceptional judicial solicitude.

The paradigm case for such activism is that of legislation adversely affecting blacks, when challenged on grounds of inconsistency with the equal protection clause of the Fourteenth Amendment. On its face, the equal protection clause provides no special standards of justification that race-related legislation must satisfy that other kinds of adverse legislative classifications need not meet. Nonetheless, on quite sound historical grounds, race-related legislation was singled out for exceptional judicial activism by the warren court. Although many of the Warren Court decisions remain of enduring controversy, it is generally conceded that the Court's strict scrutiny of such race-based laws was itself consistent with the special preoccupation of the Fourteenth Amendment with that subject. Thus, as early as 1873, in the slaughter-house cases, the Court had observed: In the light of the history of [the thirteenth, Fourteenth, and fifteenth ] amendments, and the pervading purpose of them, [it] is not difficult to give a meaning to [the equal protection clause]. The existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden."

As this historical civil war basis for that one exception was left behind, the Supreme Court plied an increasingly complicated sociology of political marketplace failure to explain an equivalent interventionism on a much broader front. Thus, gender-based laws, laws restricting aliens visà-vis citizens, and laws restricting minors vis-à-vis adults came also to be examined much more stringently under the equal protection clause than laws adversely affecting particular businesses, particular classes of property owners, certain groups of taxpayers, or others. The determination of "adequate representation" (whether direct or vicarious), the conjecture as to whether such legislative classifications were based on "stereotypes" rather than real differences, and ultimately the tentative extension of equal protection activism even to require a variety of state support for poor persons, produced unstable and largely unsustainable pluralities within the Supreme Court.

Indeed, the difficulties of selective activism in this area have been the principal object of contemporary criticism in American constitutional law. The most serious questions have been addressed to the apparent tendency of the Court to adjust its own interpretations of the Constitution not according simply to its own best understanding of that document, but rather according to its perceptions respecting the adequacy of representative government. Given the fact that far more cases compete for the opportunity to be determined by the Supreme Court than its own resources can permit it to hear, the Court might be expected to pursue a course of selective procedural activism according to which it would more readily entertain cases and more readily reach the merits of constitutional claims it should consider not to have been adequately considered elsewhere because of built-in weaknesses of representative government. On the other hand, it remains much more problematic why the Court should utilize its impressions respecting the adequacies of representative government twice over: once to determine which cases to review, and again to determine whether the Constitution has in fact been violated.

Descriptions of judicial activism and judicial restraint in constitutional adjudication are, of course, but partial truths. In two centuries of judicial review, superintended by more than one hundred Justices who have served on the Supreme Court and who have interpreted a Constitution highly ambiguous in much of its text, consistency has not been institutional but personal. Individual judges have maintained strongly diverse notions of the "proper" judicial role, and the political process of appointment of supreme court justices has itself had a great deal to do with the dominant perspectives of that role from time to time. Here, only the most prominent features of judicial activism and judicial restraint have been canvassed.

It is roughly accurate to summarize that in respect to interpreting the Constitution, procedurally the Supreme Court has usually exercised great restraint. Subject to some notable exceptions, it has eschewed addressing the constitutional consistency of acts of government to a dramatically greater degree of self-denial than it has exercised in confronting other kinds of legal issues seeking judicial resolution. Substantively, the Court has been predisposed to the national government in respect to the powers of that government: except for the early twentieth century, Thayer's law, requiring a showing of "clear error," has been the dominant motif. In respect to the states, on the other hand, the Court has been actively more interventionist, construing the Constitution to enforce its own notions of national interest in the absence of decisions by Congress. And, most controversially in recent decades, it has been unstably activist in deciding whether it will interpret the Constitution more as an egalitarian set of imperatives than as a document principally concerned with commerce, federalism, the separation of powers, and the protection of explicitly protected liberties.

William W. Van a lstyne
(1986)