A Comment on the Burger Court and "Judicial Activism"

Four members of the present Supreme Court, including the Chief Justice, were nominated in reaction to the belief that "some of our judges have gone too far in assuming unto themselves a mandate : . . to put their social and economic ideas into their decisions."1 It is perplexing, therefore, that heavy reliance on the judiciary for social and political decision-making has not moderated in the post-Warren Court years.Indeed, dependence on judicial power has be-9.This boldness has been directly evident in some constitutional interpretations; see, e.g., Elrod v. Burns, 427 U.S. 347 (1976); National League of Cities v. Usery, 426 U.S. 833 (1976); Roe v. Wade, 410 U.S. 113 ( 1973).It is also evident across a broad range of issues where the Court has demonstrated strong partiality to judicial decision-making.Even while minimizing the importance within prisons of such important constitutional rights as free speech, the Court has created a new right for prisoners to have "access" to the courtsa rather plain statement that it is judicial supervision, not constitutional content, that is primary.Bounds v. Smith, 430 U.S. 817 (1977).(For a more general and similar argument, see Mishkin, supra note 2).The Court has held that judges, unlike almost all state and federal executive officers, are immune from civil rights liability even for intentional or malicious deprivatiori of citizens' constitutional rights.Stump v. Sparkman, 435 U.S. 349 (1978).See also Butz v. Economy, 438 U.S. 478 (1978); O'Connor v. Donaldson, 422 U.S. 563 (1975); Wood v. Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).In effect, the Court held that the uninhibited exercise of the judicial function was so important that in this important respect judges must be above the fundamental law of the land.See Nagel, Judicial Immunity and Sovereignty, 6 HASTINGS CONST.L. Q. 237 (1979).While construing the Civil Rights Act narrowly to exclude civil liability for judges, the Court greatly expanded its scope when the effect was to subject a greater range of officials or of behavior to judicial supervison.For example, § 1983 was extended to include municipalities in Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978); as defendants, they are without even qualified immunity.Owen v. City of Independence, Mo., 100 S. Ct. 1398 (1980), reh.denied, 100 S. Ct. 2979 (1980).The reach of § 1983 was extended to include violations of federal statutory rights in Maine v. Thiboutot, 100 S. Ct. 2502 (1980).These cases cannot be explained merely as judicial deference to the will of Congress.The historical support for these statutory interpretations is questionable.Maine v. Thiboutot, 100 S. Ct. 2502, 2507-21 (1980) (Powell, J., dissenting); Owen v. City of Independence, Mo., 100 S. Ct. 1398, 1428 (1980) (Powell, J., dissenting); Monell v. New York City Dep't of Social Services, 436 U.S. 658, 719-24 (1978) (Rehnquist, J., dissenting).Furthermore, the Court has also expanded its authority to impose monetary remedies for civil rights violations even in the absence of any statutory authorization at all.See, e.g., Davis v. Passman, 442 U.S. 228 (1979); cf.Roadway Exp., Inc. v. Piper, 100 S. Ct. 2455 (1980) (inherent power of courts to assess attorneys' fees against opposing counsel).The inference is inescapable that in these cases and in others the Court perceived the need for broad judicial authority over the conduct of other governmental officials.E.g., U.S. v. Nixon, 418 U.S. 683, 704 (1974) (asserting that the power to construe the Constitution cannot be shared with executive branch).Such evidence, however, does not fully explain the growth of dependence on judicial decision-making under the Burger Court.It does indicate, unsurprisingly, that the Supreme Court is inclined to favor judicial decision-making and to view its own function as central in the constitutional system.But a vital, even central, role for the judiciary is not inconsistent with restraint and circumspection in the use of power.10.