Ramesh Ponnuru: "When it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint."

Damon W. Root | June 24, 2009

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.

Comments

|6.24.09 @ 5:31PM|#

isn't Sotomayor's 2nd Circuit vote to uphold New Haven's decision perfectly consistent with conservative judicial principles?

No, because the Republican principal that trumps all others is that white heterosexual christian males are the most persecuted group in the U.S. and deserve special protection.

Elemenope|6.24.09 @ 5:38PM|#

Tony's general hackery aside, it is noteworthy that the GOP (which fucking owns the "judicial activism/restraint" rhetoric) cares about it only when the facts and statutes on the ground support their policy goals. When it doesn't, they've never heard of state's rights, judicial restraint, or consistent jurisprudence and deeply desire that judges strike down laws (such as those re: affirmative action, abortion, gun control) that offend their sensibilities.

|6.24.09 @ 5:40PM|#

The whole idea of judicial restraint is silly.

One pretty important job of the judiciary (esp. the at the SCOTUS level) is to rule on whether the actions of the legislature are proper/constitutional/within the scope of their authority -- and to smack them down when they do so.

How do you square that role with judicial restraint ?

MNG|6.24.09 @ 5:43PM|#

Tom
Maybe judicial restraint just means deference to legislatures. Like a tie goes to the runner, a constitutional tie should go to the legislature. Because we are a democracy...

Glenn Beck|6.24.09 @ 5:44PM|#

B-But,

CHRISTMAS SWEATER!

|6.24.09 @ 5:45PM|#

@ChicgoTom

That's my definition of judicial restraint, minus the proper (proper is subsumed within the constitutional/scope descriptors). You seem to be confusing advocating judicial restraint with advocating a rubber stamp judiciary.
-Karl

|6.24.09 @ 5:57PM|#

Like a tie goes to the runner, a constitutional tie should go to the legislature.

Maybe, but what exactly is a tie in our system? How does one get a tie?

Either something is Constitutional or it isn't?

I dunno that something could be maybe sorta mostly constitutional.

|6.24.09 @ 6:01PM|#

You seem to be confusing advocating judicial restraint with advocating a rubber stamp judiciary.

Possible. Probably because usually when I see people advocating "judicial restraint" what they are really advocating for is rubber stamping the legislature.

I guess, based on my understanding of our system of government, the system is set up to be one of judicial restraint.

Judges strike down laws that are constitutional (or are violating other statues) and they uphold ones that aren't (regardless of how stupid or wrong headed they may be) -- at least that's how it's supposed to work.

Why does one need to "advocate" for that ?

MNG|6.24.09 @ 6:12PM|#

One strange thing about judicial restraint is the Constitution and its provisions are paramount because they were adopted by legislative majorities...

MNG|6.24.09 @ 6:18PM|#

"but what exactly is a tie in our system?"

When there are plausible, reasonable interpretations that exist both allowing and not allowing the measure in question. It ain't math...

MNG|6.24.09 @ 6:30PM|#

Eminent domain, that's a tricky one. I'm all for a strict public use recquirement. But that would still leave a lot of room for abuse. I was talking about this with my wife lately, and we thought, hey, some kind of eminent domain power is probably necessary, but how to draw it so as to prevent abuse? To be honest, I'm not sure letting the government just declare that Grandma Moses has to sell the ancestral home because they want a new park is all that great...

|6.24.09 @ 6:31PM|#

Maybe judicial restraint just means deference to legislatures. Like a tie goes to the runner, a constitutional tie should go to the legislature. Because we are a democracy...

I'd rather a tie go to the individual not the majority (i.e. the legislature). It should be clear to anyone who cares about fundamental human rights and has a passing familiarity with history, that it's more important to protect a minority's rights than to protect the majority's ability to dictate to a minority. In other words, err on the side of the individual.

|6.24.09 @ 6:31PM|#

@ChicagoTom 6:01

I agree with everything you typed there. I would add that I think often times those who attack 'judicial restraint' are doing so from the position of advocating for the judiciary to enforce their favored policy outcome, whatever the Constitutional or scope implications are. Our system is set up to be one of judicial restraint by the definition you have given. Part of the backlash from many advocates of 'judicial restraint' (who are by no means consistent with our definition) is the view that the judiciary has strayed from a role of Constitutional/scope to one of policy advocacy and/or legislation. Unfortunately, they often confuse judicial restraint with enforcing different policy prescriptions.
-K

MNG|6.24.09 @ 6:56PM|#

I dunno Brian, we have names for "minority rules"; oligarchy, monarchy, etc...

MNG|6.24.09 @ 6:59PM|#

Karl
Our system is set up in favor of judicial restraint in the sense that we believe in majority rules and consent of the governed. Federal judges are not elected by the people. The only power we dare give them in such a system is one to enforce the democratically enacted Constitutional provisions by striking down mere statutes which conflict with them...We can't have judges just making up what policy should be for the rest of us...We should get to vote on that, and the best resolution of a disagreement is majority rules. It's at least better than minority rules.

|6.24.09 @ 7:15PM|#

I dunno Brian, we have names for "minority rules"; oligarchy, monarchy, etc...

Oh come on, MNG. That's not worthy of your effort and you know it. Jesus.

There is a massive difference between a minority being able to dictate behavior to a majority, as in the cases you cited, and a minority being free from being compelled to go along with what a majority wants.

For example, when the majority in the South wanted Jim Crow laws, it was not an oligarchy of blacks that eventually prevailed by denying the majority its wishes. I hate to use such an obvious example but if you're going to equate a minority's right to be free from the tyranny of the majority with an oligarchy then it is unfortunately necessary.

MNG|6.24.09 @ 7:21PM|#

The minority I'm talking about is the court...

For example, the same court that can "decide" that the majority is wrong in Lochner (because of an individual "right" to contract) or Lawrenece v. Texas (that the individual has a "right" to engage in sodomy) is the same court that can decide that the majority is wrong in Dred Scott (because the slaveowner has a "right" to his property in another person)....

MNG|6.24.09 @ 7:23PM|#

With many cases of judicial activism the court strays from the explicit text of the constitution and creates "rights" that just are not plain or obvious in the text...An oligarchy of nine...

|6.24.09 @ 7:24PM|#

MNG - The best resolution is not majority rules. We shouldn't get to vote on what policy should be for the rest of us. Policy for the rest of us is defined by the voluntary interactions of individuals - that's the best resolution. Policies that are the purview of government and hence subject to vote are/should be strictly defined by the constitution and that's where the courts have a role - to strike down legislative policy edicts that are not explicitly provided for constitutionally. That's what I mean when I use the term judicial restraint.
-K

Elemenope|6.24.09 @ 7:27PM|#

The minority I'm talking about is the court...

Oh, come on. Judges are appointed by either an elected legislature or an elected executive, or elected directly. If it makes you feel better we can talk about ending life-time appointment (which I'm totally behind ending; federal judges would do well with ten or fifteen year terms). But on the bare fact, the people get their say in who sits on the judiciary.

|6.24.09 @ 7:28PM|#

The minority I'm talking about is the court...

I was talking about deciding when to defer to the legislature (majority) and when to uphold the rights of the individual by striking down a majoritarian law. You said in close cases it should go to the legislature and I think that is horribly backwards for the reasons I stated above. It is more important to protect an individual from the whims of the majority than the other way around. The world would be a better place if in a close case the deference was always be for individual freedom from a law enacted by the majority.

I am essentially agreeing with Damon Root's line in the post:

the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights.

I must go for now so I will have to leave it at that.

MNG|6.24.09 @ 8:20PM|#

I happen to think the "consent of the governed" is a prereq to legitimate authority. If you have some way of getting at that other than majority rules, I'd love to hear it...

|6.24.09 @ 8:24PM|#

I don't really get the argument. Isn't the basis for the white firemen's complaint the 1960's Civil Rights Acts? If what Ponnuru is arguing is that those Acts should be declared unconstitutional and no state should have to abide by them, I could get behind that. But the Acts have been upheld. So the only question in this case is whether white people deserve the same protection under the Acts that the Court routinely offers everyone else. The Acts don't have any "screw whitey" exemption in their language, so it would seem to be an open and shut case so long as one accepts the validity of the Civil Rights Acts.

Elemenope|6.24.09 @ 8:37PM|#

I happen to think the "consent of the governed" is a prereq to legitimate authority.

Necessary, certainly, but not sufficient.

If you have some way of getting at that other than majority rules, I'd love to hear it...

The "majority" is not the "governed", but only a subset thereof.

Mike|6.24.09 @ 11:00PM|#

"But is he also right about the virtues of judicial restraint?"

No. When the legislature passes an unconstitutional law, it up to the court to strike it down. If it is a close call, that just means you have to look closer. You definitely don't put your finger on the scale.

PS: The same thing goes for "stare decisis".

|6.25.09 @ 8:33AM|#

I don't think conservatives ought to buy into "judicial restraint". The issue is originalism and intent. It is not that Courts should refuse to step in when a government is ignoring the rights gaurenteed under the Constitution. If they can't, then what is the point of having Courts and a Constitution? The problem, therefore, is not the willingness of courts to invalidate state action. It is instead the willingness of Courts to invent reasons not readily apparent in the intent or the language of the text.

Conservatives have misunderstood and bastardized the term "judicial restraint". Judicial restrain is not "we won't act" to stop governments from violating the law or the Constitution. Judicial restraint as properly considered is the proposition that Courts should not read things into the plain language and intent of statutues and the Constituion in order to obtain a desired result. Courts should be restrained in how they read statutes and the Constitution not in how they enforce those documents once properly interpreted.

Barry Loberfeld|6.25.09 @ 8:52AM|#

Federalism and the 2nd Amendment:

Nothing is more likely to (justly) infuriate a liberal than an assertion of the specious theory, which in recent years has gained support among conservatives (e.g., recently defeated Senator Rick Santorum of Pennsylvania), that the "original intent" of the First Amendment's no-establishment clause was to preserve the right of the state governments to establish their own churches. "Congress shall make no law respecting an establishment of religion" -- so that the state legislatures can. Along those lines, we may conclude that the "intent" of the free-exercise clause was to prevent federal interference in the state burning of heretics. The purpose of the Eighth Amendment? No doubt to safeguard the right of the state governments to erect their own torture chambers. And of course, the purpose of the Second Amendment is to allow those governments to form their own armies and even disarm the people if they so decide -- a point where our liberal finds himself in perverse agreement with a hated premise.

Let there be no doubt: The Bill of Rights is not a charter of the rights of state churches, state armies, and state torture chambers -- and none of its ratification proponents ever championed it as such. It is a charter of the rights of American citizens -- against the power of the federal government. The weak reed of this "states' rights" theory is the fact that the Constitution did not secure these rights for citizens against the power of the state governments, a defect that Madison recognized and tried to remedy with an amendment (which he thought the "most valuable") affirming "No state shall violate the equal rights of conscience" and other liberties. Sadly, it was never adopted, and incorporation -- the application of the Bill of Rights to the state governments -- was not achieved until the Fourteenth Amendment, whose "privileges or immunities" clause was stated by its author, Congressman John Bingham of Ohio, to effect precisely that end. (See Michael Kent Curtis' No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights.)

The question now: Who are the greater knaves of our time -- liberals who embrace incorporation except for the Second Amendment or conservatives who reject incorporation, except for the Second Amendment?

Read the whole story (including ROBERT BORK and the 2nd Amendment).

|6.25.09 @ 10:13AM|#

"but what exactly is a tie in our system?"

When there are plausible, reasonable interpretations that exist both allowing and not allowing the measure in question.

Too broad. Any skilled attorney can come up with facially plausible and superficially reasonable interpretations for his client's side.

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.

I believe that what Bork is saying here is that broad protections of individual rights are unenforcable against the State, or should not be enforced against the state, because broad statements of protection are inherently "vague."

Its a sad commentary that, to the extent we need a presumption in close cases, that presumption runs in favor of the State and not the individual.

Brian Lockwood|6.25.09 @ 1:35PM|#

Elemenope,
Perhaps a Venn Diagram would help. I have some Lemma's I can put forward if MNG needs a formal proof of the Universal Legitimate Governance Theorem.