National Review Senior Editor Ramesh Ponnuru has a very interesting op-ed in today's New York Times criticizing his fellow conservatives for both abandoning the principle of judicial restraint and for erroneously accusing Supreme Court nominee Sonia Sotomayor of judicial activism. He's right on both counts, though not exactly for the right reasons.
Judicial restraint, as Ponnuru puts it, "is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments." Ponnuru calls this a "virtue" and, until relatively recently, most conservatives would have agreed. But as he notes, conservatives do not want the Supreme Court to defer to the judgment of local officials in New Haven, Connecticut, where a white firefighter named Frank Ricci saw his test results for an officer position thrown out because black applicants scored poorly on the same test. Ricci sued and the Supreme Court will be offering its decision fairly soon. But why—goes the argument for judicial restraint—impose a federal solution to a local problem? In other words, isn't Sotomayor's 2nd Circuit vote to uphold New Haven's decision perfectly consistent with conservative judicial principles?
Along the same lines, many conservatives today would likely say that the Second Amendment should apply to state and local governments, just like the rest of the Bill of Rights do, via the Due Process Clause of the 14th Amendment (or, more appropriately, via the Privileges or Immunities Clause). But consider the views of former federal appeals court Judge Robert Bork, who is perhaps the most influential conservative legal thinker of the past several decades. In his book The Tempting of America, Bork sneered at the Supreme Court's incorporation of the Bill of Rights against the states as "a temptation to judicial constitution-making the Justices could not resist." In Bork's view, the federal courts had little business defending individual rights from state and local majorities via the "vague" and "silent" provisions of the 14th Amendment. Thus when it comes to the Second Amendment—again goes the argument for judicial restraint—why not let local majorities decide upon an appropriate level of gun control?
So Ponnuru is right to criticize his fellow conservatives for their inconsistent rhetoric. But is he also right about the virtues of judicial restraint?
As I've previously argued, the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights. That means engaging in a principled form of judicial activism that limits state power and defends individual liberty. Obviously the courts have very rarely done this, but that doesn't mean they shouldn't do it. The problem with Sotomayor's vote to uphold racial preferences (and to uphold eminent domain abuse), in other words, is that she showed entirely too much judicial restraint.