Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No. 4, he concedes explicitly (while arguing, plausibly enough, that No. 4 isn't a useful criterion in a country with firmly established judicial review). On No. 1, he all but concedes, arguing that "if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common." Given this, we can go ahead and just say that the decision would be "activist" on this basis—if there are more than five votes for a decision striking down the ACA, I pledge now to donate $100 to the Federalist Society in Professor Kerr's name. And while there may be some cases where it would be hard to "know with any certainty what the Justices subjectively wanted," given the oral arguments in this case I think we can make some pretty safe guesses. One crucial and important point of disagreement I would have with Kerr would be on point No. 2:
As for meaning #2, I think accusations that a decision striking down the mandate would be activist in the #2 sense would be pretty weak, at least assuming the decision tracked the arguments made by the challengers. The main reason is that the argument made by the challengers would be very easily circumvented in a future case. The challengers agree that a future Congress could reenact the same law simply by clearly labeling it a tax, or by structuring the law as an entitlement. As a result, the challenge to the mandate isn’t making it impossible to enact health care reform: It’s merely trying to invalidate the one way that Congress happened to have enacted health care reform, without blocking others.
I have one minor and one major objection here. The minor one is that I'm not convinced that a decision based on the "inactivity" distinction could be cabined quite as easily as Kerr assumes; the signal from the Supreme Court that it will start scrutinizing economic regulations in a way it hasn't since the New Deal could well have broader effects. But even if we assume that this ticket will prove to be good for that day and train only, I have a bigger problem with No. 2, which ignores how congressional power actually works in the current system. Since control of any veto point is enough to stop Congress from acting, to say that Congress could just pursue the same goals by tweaking the system is highly misleading; this would be practically impossible for the foreseeable future. And since the liberty interest involved is ipso facto trivial (if Congress could pursue the same ends by enforcing the mandate as a "tax" rather than a "penalty," how serious can the invasion of state sovereignty or individual freedom be?), this is exactly why striking down the ACA on these kinds of grounds would be so disturbing.
There is another side to this—the fact that the coalition that passed the ACA could not be reassembled anytime soon is one reason that I think the Court could strike down the ACA with little threat to its legitimacy. But this is a political warrant for judicial activism, not an argument that the Court wouldn't be engaged in judicial activism. So I think that the only way the a decision striking down the ACA wouldn't be "activist" would be under criterion No. 5—the argument that no decision that one agrees with can be "activist." Since, as Kerr implies, this standard is worthlessly tautological, it doesn't get you very far. Which brings us to the other question: Particularly since the fifth criterion is the one most popularly used, is there any real value to the term "judicial activism" anymore? Kerr argues that abandoning the term would be "unjustified"; I'm less convinced. But to the extent the term is meaningful, a decision striking down the ACA would be "activist" in the sense if the term is at all meaningful. The only question is whether this activism is justifiable.
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