Conservatives Against Heller

Damon W. Root | October 21, 2008

New York Times Supreme Court correspondent Adam Liptak has an article describing the recent grumblings by conservative federal appeals court judges Harvie Wilkinson III and Richard Posner about the Court's gun rights decision in D.C. v. Heller. As Liptak notes, both Wilkinson and Posner have accused Justice Antonin Scalia of resorting to the same illegitimate judicial methods in his Heller opinion that he typically castigates the Court's liberals for using.

In my article on the subject last month, I argued that Wilkinson does have a point, though it's not one that undermines the outcome in Heller. As Wilkinson correctly notes, Scalia typically argues that judges ought to defer to the will of legislative majorities. There's also the point, made by Scalia and other proponents of judicial restraint, that the courts should avoid the "political thicket" whenever possible. So why not let D.C. voters and local officials settle their own gun control debate? The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people. But that's not judicial restraint, which is what Wilkinson—who's nobody's idea of a liberal judicial activist—points out.

Comments

|10.21.08 @ 5:59PM|#

But that's not judicial restraint, which is what Wilkinson-who's nobody's idea of a liberal judicial activist-points out.

I don't understand this argument that seems to be so popular. It's neither activism nor restraint. It's doing your job. That's what the court is supposed to do. If you define judicial restraint to mean the court not doing anything and activism to mean the court doing something, you've effectively negated any meaning for the terms.
-Karl

|10.21.08 @ 6:19PM|#

Scalia's originalism stands exposed as a sham. I liked the part about Scalia just making stuff up that is nowhere in the 2nd Amendment.

squarooticus|10.21.08 @ 6:33PM|#

Why, oh why, didn't Roberts let Thomas write the Heller decision?

Mad Max|10.21.08 @ 6:41PM|#

"The judges used what in conservative legal circles are the ultimate fighting words: They said the gun ruling was a right-wing version of Roe v. Wade, the 1973 decision that identified a constitutional right to abortion."

Moral-equivalence bullshit.

There might be some equivalence if we had a Sixty-Ninth Amendment declaring, "A sound family policy being necessary to the security of a free state, the right of the people to keep or abort children shall not be infringed."

This is conservative populism from the nutjob elements of the conservative coalition.

Wilkinson is a notorious Bush-fellator, who said the President has the authority to indefinitely lock up American citizens captured on foreign battlefields - without a trial of any kind.

Posner is of the law-and-economics school, who believes in interpreting the law - including the Constitution - in such a way as to promote efficiency. He's a utilitarian who would have embarrassed Bentham. Posner is also pro-abortion. The views he expressed in his book *Sex and Reason* are what used to be called liberal - if the conservative movement is broad enough to include the Posners of the world, then so much the worse for the conservative movement.

Conservativism sure ain't what it used to be.

|10.21.08 @ 6:58PM|#

"The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people."

If a statute passed by a majority vote in a legislature violates a Constitutional Amendment representing a supermajority then to not strike it down would be a violation of democratic principles. That's not activism...

hmm...|10.21.08 @ 7:07PM|#

so if enough of us vote to kill mng...

Mad Max|10.21.08 @ 7:26PM|#

Perhaps Wilkinson could denounce Scalia's opinion in the *Hamdi* case, where he said that American citizens captured on foreign battlefields are entitled to a trial by jury before they can be sent to prison, unless Congress has suspended habeas corpus for citizens in cases of invasion or insurrection.

hotsauce|10.21.08 @ 7:29PM|#

Judicial activism (as currently used): anything I disagree with.

Judicial activism (as properly used): Overruling the democratic process when the law is not expressly in conflict with the constitution.

hotsauce|10.21.08 @ 7:32PM|#

hmm ...,

It might be judicial activism, but it's not activism. Wrong, certainly.

squarooticus|10.21.08 @ 7:43PM|#

Judicial activism (as properly used): Overruling the democratic process when the law is not expressly in conflict with the constitution.

This isn't good enough. "Expressly" implies the abrogation of the 9th and 10th amendments, because there is no list of enumerated rights. The courts must overrule the democratic process when civil liberties---any behavior that does not materially harm another individual---have been prohibited.

|10.21.08 @ 8:16PM|#

From dictionary.com. FWIW.

judicial activism

noun
an interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court) [syn: broad interpretation]



judicial restraint

A view, associated with Felix Frankfurter among others, that judges should be reluctant to declare legislative enactments unconstitutional unless the conflict between the enactment and the Constitution is obvious. The doctrine is akin to, but not identical with, narrow construction, and it is the opposite of judicial activism.

|10.21.08 @ 8:17PM|#

I don't think dictionary.com is right.

Xanthippas|10.21.08 @ 8:54PM|#

The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people. But that's not judicial restraint, which is what Wilkinson-who's nobody's idea of a liberal judicial activist-points out.

Well, more to the point, Wilkinson regards the decision as insupportable by the Constitution:

"In both Roe and Heller," Judge Wilkinson wrote, "the court claimed to find in the Constitution the authority to overrule the wishes of the people's representatives. In both cases, the constitutional text did not clearly mandate the result, and the court had discretion to decide the case either way."

In other words, he's not merely concerned about a subversion of the democratic process. He doesn't think the Constitution supports the Court's interpretation. And I'm sure he would have issue with your definition of "judicial restraint" as merely avoiding striking down "unconstitutional laws."

|10.22.08 @ 12:39AM|#

Why would anyone take seriously anything that the wardheelers of Bush v. Gore--Rehnquist, O'Connor, Scalia, Kenndy and (good old Uncle) Thomas--say about judicial restraint? Each was/is a damned result oriented hack. So is Posner, who supported that decision.

|10.22.08 @ 12:43AM|#

It looks like there are all of two conservatives - both federal judges tenured for life - who disapprove of Heller. Big deal.

Brian Ewart|10.22.08 @ 12:57AM|#

Conservative law professor Doug Kmiec is also anti-Heller, fwiw. He is also one of the more high-profile "Republicans for Obama."

Gilbert Martin|10.22.08 @ 8:35AM|#

"Scalia typically argues that judges ought to defer to the will of legislative majorities. There's also the point, made by Scalia and other proponents of judicial restraint, that the courts should avoid the "political thicket" whenever possible. So why not let D.C. voters and local officials settle their own gun control debate? The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people. But that's not judicial restraint, which is what Wilkinson-who's nobody's idea of a liberal judicial activist-points out."

Wilkinson has no point.

Judicial activism means the judge is making stuff up that is nowhere to be found in the text of the Constitution - or deliberatly someting that is in there - or deliberatly claiming something that is in there means something other than what it literally says - in order to override the legislative and/or executive branch with the judge's own personal preferences.

Judicial restraint means the judge will not do that. It doesn't mean that the judge will never enforce some article of the Constitution as it is actually written.

Gilbert Martin|10.22.08 @ 8:36AM|#

Make that "deliberaly ignoring something that is in there"

bubba|10.22.08 @ 10:55AM|#

I can see how a conservative can be against McCain.

I don't see how one can be for Obama. That's just crazy talk.