WASHINGTON - During last year's presidential campaign and in the months leading up to his first wave of judicial nominations, President Bush gave notice that he would not appoint "activist judges" to the federal courts who would "use their bench to subvert the legislature."
A generation ago, the president's meaning would have been clear. During the 1960s and 1970s, activist judges were liberals who used their power to expand individual rights of self-expression, due process and privacy. In striking down government restrictions on abortion and free speech, they were condemned by conservatives for overstepping their role as judges and legislating from the bench.
But in recent years, these roles have been reversed. Liberal judges, no longer in the majority on most courts, have urged judicial restraint as a way of preserving their earlier victories. And it is conservative judges who have taken an activist stance that shows little deference to elected branches of government.
This reversal has been most evident on the Supreme Court, where seven of the nine justices are Republican appointees. In the past six years, the court has struck down all or part of 27 federal statutes. And since William H. Rehnquist became chief justice in 1986, the court has overruled more than 30 Supreme Court precedents.
"We are now in an era of tremendous conservative judicial activism," says Erwin Chemerinsky, a law professor at the University of Southern California. "The Rehnquist court has already struck down more federal laws than either the Warren or Burger courts."
The effect of this activism has been profound. In decisions narrowly construing Congress' power to regulate interstate commerce, the court has limited the federal government's ability to address social concerns such as domestic violence and school safety. In opinions protecting states from lawsuits in federal courts, it has weakened anti-discrimination laws designed to protect disabled and older workers.
The court has prohibited Congress from conscripting the aid of states to deal with nationwide problems such as radioactive waste and the possession of handguns by convicted criminals. It also has prevented Congress from expanding the Constitution's protection of religious activities.
And last year, the court stepped into the middle of the disputed presidential election when most observers expected it to stay on the sidelines.
Following the Constitution
Conservative scholars defend this new activism. They say that the court is simply following the command of the Constitution and that if the result is an increase in the number of laws struck down, so be it. They also argue that the charge of judicial activism is empty without examining the basis for the court's decisions.
"I think the term judicial activism has no meaning," says Harvard law professor Charles Fried, who served as solicitor general under President Ronald Reagan. "It's shorthand for judges doing what you don't like. The more accurate question is whether judges are following the law or making it up, and following the law or the Constitution can make you very active sometimes."
Fried argues that the judicial activism of the 1960s and 1970s was unwarranted because the court created rights out of thin air, with no basis in the Constitution. He is especially critical of the court's use of the due process clause - which on its face merely requires the government to follow certain procedures before depriving a person of life, liberty or property - to create a substantive right to abortion in Roe vs. Wade.
The Rehnquist court's activism is different, Fried maintains, because it is grounded in the words of the Constitution. As an example, he points to the court's decision last year to strike down a federal law giving the victims of rape, domestic violence and other crimes "motivated by gender" the right to sue their attackers in federal court.
The case involved a lawsuit brought by Christy Brzonkala, a student at Virginia Polytechnic Institute, against two varsity athletes she accused of raping her in her dorm room. When the school declined to discipline the two men, she sued under a provision of the 1994 Violence Against Women Act.
Fried says the law could not be justified as an exercise of Congress' power to regulate interstate commerce - as lawmakers said - because the link between gender-based violence and commerce is too weak. Any other conclusion, he argues, would violate the long-accepted principle that the federal government's power is limited.
"If that's a regulation of commerce, then anything is, and plainly the Constitution does not intend for Congress to be able to regulate everything," says Fried, who helped argue against the law before the court.
But liberal scholars say the issue was more complex. Before passing the law, Congress had gathered substantial evidence showing that violence against women has a negative impact on the national economy by impairing the productivity and mobility of female workers.
Therefore, they say, the court's conclusion that Congress had exceeded its power to regulate commerce was not a straightforward application of the Constitution; instead, it was a substitution of the court's judgment for that of Congress.
More troubling, liberals say, are the court's decisions barring state employees from suing the states in federal court for age and disability discrimination. The court based these decisions on the 11th Amendment, which says that federal courts cannot hear cases brought against states by citizens of other states or foreign countries.
As many scholars point out, however, the amendment says nothing about suits brought by citizens against their own state.
"There's no way to square what the court is doing with the 11th Amendment with any notion of judicial restraint," says Peter Shane, a professor and former dean at the University of Pittsburgh School of Law.
Even some conservative scholars agree on this point. But if the court's activism cannot be justified entirely on the basis of constitutional language, they say, it can be defended in other ways.
One of the more intriguing defenses has come from J. Harvey Wilkinson III, a judge on the 4th U.S. Circuit Court of Appeals in Richmond, Va., who is frequently mentioned as a potential Supreme Court nominee. In an unusual concurring opinion two years ago, he acknowledged that the Supreme Court and his court have ushered in a new era of judicial activism.
But he argued that today's activism is different from the judicial activism of the 1920s and 1930s - when the Supreme Court struck down economic regulations passed to deal with the Industrial Revolution and the Depression - and from the activism of the 1960s and 1970s.
In those periods, he wrote, the court often ruled against particular interest groups - such as unions in the 1920s and 1930s - and was driven by its policy preferences. In the current era, the court's decisions have affected a range of interest groups, from gun-control advocates to religious minorities and women's groups.
In addition, he argued, the court is acting as a "structural referee" between the states and federal government and is not pursuing its own agenda.
Wilkinson's defense is not convincing to many liberals. Although the court's decisions have gone against different interest groups, nearly all of them share a common liberal viewpoint. Moreover, liberal scholars say that by taking power away from the federal government, the court has made states responsible for many issues they are not equipped to handle.
"It is transparent that on their own, states have not been able to eliminate either threats to school safety from firearms or the plague of gender-based violence," argues Shane.
Liberals agree with Wilkinson on one point, which is that the current era of activism must ultimately be curbed. In his opinion, Wilkinson warned that "if modern activism accelerates to a gallop," this era will be discredited like the earlier eras.
It is also possible that the court could limit the ability of Congress to induce states to comply with national policies through conditions attached to federal spending. Although the court upheld this practice in a 1987 case involving federal highway money and the drinking age, it has suggested that such conditions might be struck down if they amount to coercion or have little to do with the reason the money is being spent.
In large measure, the direction the courts take on these issues will depend on the judges selected by President Bush over the next few years. That's why scholars have paid such close attention to his statements about the types of judges he is looking for.
If one listens to his message, they say, it might sound as if he opposes judicial activism. But while he continues to praise judicial restraint, the judges he appoints might not practice it.
"Where we are now is an unusual point where conservatives are still using the rhetoric of judicial restraint, but it's conservative judges who are activist," says USC's Chemerinsky. "It's because it is such a politically simple and appealing message. It's simple to say we want judges who apply the law and don't make the law. The problem is it was always an oversimplification. Judges have always made law."