Because the Court will not permit legislative compromise on abortion, neither side seeks it. On the contrary, both gravitate to the extremes.
Is a strong form of precedent a good way to prevent judicial activism? Many reasonable people seem to think so. I am more skeptical, not least because the relatively strong form of precedent that the Court professes has coexisted with judicial activism for many decades.
But for a deeper analysis, we need to define judicial activism. The most straightforward definition is that the judiciary is activist when it invalidates a provision of the federal or state legislature. We might label this judicial activism type I activism, its opposite being judicial restraint. But another possible definition is that the Court is activist when it acts on its own discretion rather than on the basis of a clear dictate of law. We might label this judicial activism type II activism, its opposite being judicial constraint.
I think a strong form of precedent has a more plausible, if not ultimately persuasive, claim to prevent judicial activism of the second type. The argument would be that the Supreme Court’s thousands of decisions narrow the opportunity for current discretion, because these many decisions of the past provide on point guidance to the controversies of today. But even this claim runs into immediate problems. As Judge Frank Easterbrook has noted, even when the Supreme Court has the same justices precedents will not always be consistent because of paradoxes of voting. And more obviously, given that the Supreme Court changes in composition, precedents over time are even more likely to be inconsistent in their principles, even if not their results. Inconsistent principles then generate the problem of discretion, because justices will need to choose on principle over the other. One might well think that following the original Constitution rather than precedent could well be better on this score, because the relevant provisions were at least formulated at a single time with the greater claim to some principled coherence.
But the problem with precedent as constraint under traditional rules is even more intractable, because some past decisions empower the Court to act in discretionary ways. That is true, of course, of the doctrine of substantive due process at the heart of the line of the Court’s cases on personal autonomy. The Court has in fact resisted calls to overrule the most notorious of these cases, Roe v. Wade, on the grounds of stare decisis. Nor has it reined in the wild chariot that is the substantive due process doctrine generally. It is now a deeply embedded series of precedents.
The difficulty that precedents have in curbing judicial activism of the first type is more straightforward. The Supreme Court has created a lot of precedent that invalidates legislative action as well as upholding it. Roe v. Wade is, of course, again a notorious example of this type of case, and the Supreme Court has repeatedly reaffirmed it on the basis of stare decisis. And most pragmatic rules of stare decisis give weight to the reliance interest of individuals. As a result stare decisis will tend to protect past decisions that protect individual rights rather than those that empower democratic legislatures. Precedent rules are not neutral between judicial activism and judicial restraint.
Now, of course, it could be argued that judicial activism of type I should be defined to include only cases that strike down legislation wrongly. But many, if not most scholars, have argued that such a definition drains judicial activism of any independent meaning, equating the concept instead with judicial correctness. But however that dispute is resolved as a general matter, this narrower definition of judicial activism does not seem a useful concept in the context of precedent. The whole point of treating a decision as precedent is not to revisit the correctness of the decision.
In a subsequent post, I will consider whether it is possible to revise the rules of precedent so that they would be more effective against judicial activism, even if my own view is that judicial constraint or restraint per se should not be the primary goal for precedent rules.