Q&A – Judicial Activism & American Governance
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Today’s Entry: Brian, I have been listening to, and enjoying your sophisticated analyses for years ever since we moved to Florida. I would appreciate your thoughts on the following.
We have been taught from childhood that America is a democratic republic with the separation of powers between the three parts of government. However, it seems to me that in reality we are governed by the judicial branch that rejects or modifies virtually every new piece of legislation, executive order, and implementation of laws by the government agencies, whether on a federal or state level, thanks to the countless lawsuits. And the court decisions, many of which seem to be activist and political, have the greatest impact on our daily lives. It would be interesting to know what percentage of laws, executive orders, and policies are ultimately modified by the courts, and if in fact the US government has become more of a form of a type of oligarchy rule by appointed judges rather than a true democratic republic.
Bottom Line: Today’s note is an example of why I love the daily Q&A’s. I often get to learn right along with you as I research topics. Today’s topic also provides the potential to use empirical analysis to address perception. I tend to think that’s useful as we’re in an era of news reporting that’s often narrative driven as opposed to analytically driven. By that I mean that often topics, issues, laws, executive orders, etc. that fit desired narratives, based on the angle of the coverage of a media outlet, are often presented with outsized significance relative to everything else that’s going on.
For example, as we’re discussing potential judicial activism having an outsized influence in our system, what’s your perception as to partisanship with the United States Supreme Court? In a 2019 analysis of the (then) current court’s decisions and opinions, the most common outcome for cases considered by the court was a consensus decision. As I noted at the time 70% of the Supreme Court’s decisions were consensus opinions, a la what we just saw with the Court’s decision on former President Donald Trump’s ballot access case. Only 10% of the Court’s rulings were split along perceived ideological lines. What I was able to conclude at the time was that the court wasn’t nearly as ideological as perceptions of it were. That commonly occurs due to the commonplace reporting discussing justices as either conservative or liberal based upon the nominating president.
The perspective/concern expressed in today’s note is a majority perspective. Gallup has sampled on this topic since 1972. On the question... As you know, our federal government is made up of three branches: an executive branch, headed by the president; a judicial branch, headed by the U.S. Supreme Court; and a legislative branch, made up of the U.S. Senate and House of Representatives. How much trust and confidence do you have at this time in the judicial branch headed by the U.S. Supreme Court -- a great deal, a fair amount, not very much or none at all? Most recently only 49% of Americans expressed at least “a fair amount” of confidence – which was the second lowest on record.
So, let’s get into it. The most comprehensive study that’s been conducted on the topic happened in 2006. The study which was presented in the Vanderbilt Law Review covered a thirteen-year period in which laws were challenged for constitutionality. What it found throughout the federal court system is that only 30% of laws that are challenged before a court are upheld. What this implies is that if a court takes up a law there’s a far better than not chance that the law will be overturned, either partially or entirely. This also feeds the desire by those who oppose public policy to attempt to sue to overturn enacted laws. They know that if their case is taken up by a court the odds are that they will win.
On the surface, without additional context, this would potentially support the notion that the judicial branch has held outsized influence within our system of government. For the purpose of this exercise, I need a limiting factor, so I’m going to focus on federal laws and the federal judicial system.
Laws come in two different types, what are known as ceremonial, or those that don’t affect policy, and substantive which do. Over the previous five congresses (past decade), a total of 1,191 substantive federal laws were passed, or an average of 119 per year. Over that same period only 20 were overturned. In other words, 98% of the federal policy passed by Congress and signed into law by the President of the United States over the past decade remained in place. During that time, we also had presidents from opposing parties and varied control of congress. This would seemingly illustrate that the will of the people via their elected representation, whatever that has been at any given time, has almost always won out.
Through this exercise what we see is that the odds are that if a court decides to hear a legal challenge to a law, there’s a better than not chance it will be at least in part overturned. But what we also see is that a small percentage of cases challenging laws are ever taken up in the judicial system. Specific to a collective perception of the courts playing an outsized role in our representative republic, that likely factors into it. When we see them considering the constitutionality of a law, most of the time we see them overturn it. Our perceptions are likely colored through the perspective of media coverage. The most recent high-profile example in Florida is a perfect example.
A Google search of “Florida Don’t Say Gay” nets 65.9 million results. Over the past two years how many times can you recall stories decrying Florida’s Parental Right’s in Education law? How many times have you heard about the legal challenges pertaining to it? In the end the case was dismissed by a federal court (the court declined to take it up) and the law remained intact. That’s what almost always happens with every law and most legal challenges to them. It’s just not often the perception we’re left with based on what the media chooses to cover and how they choose to cover issues. This isn’t to say that judicial activism isn’t a concern or isn’t at least occasionally real. As the 9th US Circuit Court of Appeals infamously proved for over a decade – with 79% of their decisions being overturned by the US Supreme Court – it can be. But at the same time, it isn’t the norm.