A New Look at Who’s Activist and Restrained on the Court

This country’s founders could not have anticipated the current power of the federal judiciary. Alexander Hamilton wrote to this effect in Federalist Paper #78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” This statement is a clear indication that the founding fathers did not envision a particularly activist role for the Court.

These same founders must have been surprised then, when in Marbury v. Madison,  Chief Justice John Marshall indicated the Court’s capacity for judicial review and effectively created a constitutional mechanism for the Court to legislate from the bench.  

The Court can do this by upholding legislation it deems constitutional, and striking down legislation it sees as unconstitutional  In modern times it often does so along ideological or partisan lines, and we see the impact of judicial review on a regular basis. On November 25, 2020, for instance, the five most conservative members of the Court struck down New York’s restrictions on religious services due to the COVID-19 pandemic. The effect of this decision was to change the law from what state elected politicians enacted.

The Court’s liberal wing has also been on the majority end of such decisions. On October 28, 2020 the Court overruled North Carolina’s deadline on absentee ballots over the dissenting votes of Justices Thomas, Alito, and Gorsuch. This decision had the effect of changing the voting laws in North Carolina, also enacted by elected state officials.

While legislating from the bench has generally been frowned upon over the years, this perspective has not prevented the Court from overturning well over 100 state and federal statutes.  Such over-rulings have come at the same time as the development of a doctrine of judicial self-restraint dating at least as far back as James Bradley Thayer’s historic Harvard Law Review article from 1893.

Thayer helped root the philosophy of judicial restraint, that later took forms of arguments from Alexander Bickel among others for a more minimalist role for the judiciary.  The concept of restraint extends beyond principles for when the Court should avoid ruling in cases, both including and distinct from when they are asked to overturn federal or state statutes, and encompasses reasons why courts should and should not become entangled in cases with specific criteria from the get go.

One way that the Supreme Court justices maintain the specter of restraint and a way to operationalize principles of judicial restraint is through justiciability doctrine.  Justiciability limits, through various rules of decision-making (including standing, ripeness, mootness, and more), the circumstances under which the Court can take up a case.  Justice Brandeis’ concurring opinion in Ashwander v. TVA (1936) is still regularly cited by the Court to invoke such doctrine, including twice in opinions at the end of the 2019 term in June 2020 — in Justice Thomas’ dissent in June Medical v. Russo and in Justice Sotomayor’s dissent in Espinoza v. Montana Department of Revenue.  

The notion that this doctrine might be invoked by Justices for partisan or ideological reasons, rather than the safeguarding of justiciability norms, is explored in a fictional setting by Brandeis historian and author Neal Rechtman in his 2019 novel The Ashwander Rules.  In the real world these principles of judicial restraint are often cited in Justices’ arguments about how the Court inappropriately decided cases that it should have avoided due to principles of justiciability  The ongoing importance of these Rules was acknowledged by the Congressional Research Service in this 2014 study.  The seven jurisdictional rules articulated by Brandeis in his Ashwander concurrence are:

  1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding Rule Against Feigned or Collusive Lawsuits
  2. The Court will not “anticipate a question of constitutional law in advance of the necessity of deciding it.”
  3. The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
  4. 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.
  5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
  6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
  7. When the validity of an act of the 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.

This post examines how the Justices have deployed these principles in their opinions over the previous five terms: from OT 2015 through OT 2019. To do this it looks at every case in which this doctrine is invoked in majority and separate opinions, and whether the Justices accepted such cases for adjudication, or declined the invitation to rule on the merits due to the entanglement with principles of justiciability.

An example of how the fifth Ashwander rule is employed came in the OT 2019 case Thole v. U.S. Bank, N.A, a case about benefits recipients receiving guaranteed fixed payments each month regardless of the plan’s value or its fiduciaries’ investment. Writing for a conservative 5-4 majority in Thole, Justice Kavanaugh stated, “We affirm the judgment of the U. S. Court of Appeals for the Eighth Circuit on the ground that the plaintiffs lack Article III standing. Thole and Smith have received all of their monthly benefit payments so far, and the outcome of  this suit would not affect their future benefit payments.”  Justice Sotomayor disagreed with this assessment in dissent, arguing that the Court should have continued with its analysis in the case: “Because respondents’ alleged mismanagement lost the pension fund hundreds of millions of dollars, petitioners have stated an injury to their equitable property interest in that trust.”

The way these Rules are raised vary by case. Some majority opinions argue, as was the case in Thole, that the Court should prudentially avoid going further to rule on the case merits. In other instances, usually when the dissent makes a case that the majority should apply restraint, the majority opinion discusses why the Court decided to rule on a case’s merits. The same or similar arguments come up in dissent and in concurrences, often creating an intra-Court dialogue specifically focused on the Court’s powers to entertain the merits of cases.

Overall during the period of this post, Justices from the conservative end of the Court brought up these Rules more frequently, both for reasons related to the Court continuing to review cases and for reasons related to the Court curtailing their decisions due to these Rules.

This graph in isolation does not mean that the conservatives justices are more activist as it includes times when justices bring up the Ashwander Rules as a reason for why the Court should not decide a case as well. This just shows that the conservative justices, in particular Justices Thomas, Alito, and Roberts engaged these Rules more frequently during this period. 

This also shows that certain Justices like Kagan and Kennedy referenced these rules much less frequently than other Justices.

Before getting into how these Rules are utilized by the justices, we can probe the justices’ decisions by looking into what type of opinions, majority or secondary, they wrote when they brought up these principles.

Certain aspects of this graph stick out. Chief Justice Roberts, for instance, almost uniformly applied these Rules as a majority opinion author. He is not a frequent secondary opinion author in general, but he authors more dissents relative to majority opinions in the totality of his decisions than he does in this set.  Justice Kagan, similar to Roberts, also employed the Rules predominately in majority opinions she authored. Justice Breyer was much more balanced in his approach as was Justice Thomas.  Justice Thomas also employed these rules in more concurrences than any other Justice. The only other justice with any regular reference to these principles in concurrences was Justice Sotomayor.

Along with opinion type (majority or secondary), another indicator of when the justices make use of these principles can be perceived by looking at cases by specific case types.

Even though the Court hears many more criminal cases than any other case types these principles do not frequently come up in criminal cases. Of civil case types, we see that these principles often come up in civil rights, economic activity, and judicial power cases. Interestingly enough, the Court tends to hear fewer judicial power cases than economic activity and civil rights cases in its usual merits docket.

The variation in the justices’ use of these Rules by case type is also telling of their areas of interest. Justice Alito, for example, exceeds the other justices in his employment of these rules in civil rights cases.  Justices Thomas and Alito are the most frequent referencers of these Rules in criminal cases.  Justice Thomas dominates all other justices by a great deal in his reference to these rules in economic activity and judicial power cases.  Chief Justice Roberts is a frequent referencer of these principles in economic activity cases as well, falling just behind Justice Thomas in this area.

The utility and importance of these Rules, however, really depends on how they are used.  The following graph shows the balance of when each justice applied a Rule to argue the Court should decide a case and when they thought the Court should avoid rendering a decision on the merits of a case.

Chief Justice Roberts was the most frequent justice arguing that cases should be decided even when these rules were brought up. Note though that he did not take this approach in every case though. In the recent cases Gill v. Whitford, Roberts authored the majority opinion in which he decided to skirt case merits due to principles of standing.

Justice Thomas was much more inclined on the balance to argue that the Court should avoid ruling on the merits of cases due to the principles from the Ashwander Rules. Justice Alito was evenly balanced between arguing to proceed and arguing to withhold judgment.  Justice Kagan, like Justice Roberts, was much more inclined to argue that the court should proceed. 

To look at a greater level of detail, we can also break down the justices’ decisions of how the Rules should be applied by opinion type. The final graph looks at when the justices argue a case should or should not be decided according to an Ashwander Rule breaking these decisions down by whether the justice was in the majority of the Court or in the dissent.

Some interesting attributes of the justices’ decisions are apparent in this graph.  Justice Thomas, for instance, only argued that the Court should not rule on case merits when he brought up one of these principles in dissent. When Thomas was in the majority, however, he split fairly evenly between arguing that the Court should decide and should not decide the substance of the dispute when these principles arose.  Roberts almost entirely brought these principles up in majority opinions and in these instances he was almost entirely in favor of the Court rendering a substantive decision in each case.  Justice Alito was generally in favor of not reaching the substance of the dispute when he raised these issues in dissent, but he was in favor of proceeding to cases’ merits when these principles came up in his majority opinions.  Justice Kagan tended to raise these principles as a majority opinion writer and both as a majority and dissenting author, we see that she tended to support the Court ruling on the merits of such cases. Other justices had fewer disparities in their application of these Rules.


On Twitter: @AdamSFeldman

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