In April the Federalist Society bestowed its ninth annual Lifetime Service Award on Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. Appointed to that court by President Ronald Reagan in 1984, Wilkinson is a respected judicial conservative whose name was frequently mentioned as a possible Supreme Court nominee during the early years of the George W. Bush presidency.
These days, however, Wilkinson is perhaps better known for his barbed critiques of fellow judicial conservatives. For example, after the Supreme Court ruled in District of Columbia v. Heller (2008) that the Second Amendment secures an individual right to keep and bear arms, not a collective one, Wilkinson unloaded on Justice Antonin Scalia’s majority opinion, describing it as a work of right-wing judicial activism. "Heller," Wilkinson wrote in the Virginia Law Review, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." Indeed, Wilkinson even compared Scalia’s Heller opinion to the Court’s recognition of a right to abortion in Roe v. Wade (1973), which, as I observed at the time, “is about the worst thing one judicial conservative could say to another.”
Wilkinson sounded a similar warning on the night he received the Federalist Society’s Lifetime Service Award. His acceptance speech has now been published in the legal journal The Green Bag under the title “The Lost Arts of Judicial Restraint,” and it offers a fascinating perspective on the current state of conservative legal thought. As Wilkinson tells it, the conservative legal movement has reached a crossroads, with the longstanding “tension between libertarian conservatives and traditionalists” dangerously out of balance. “At present,” he worries, “the libertarian view seems to be in the ascendency among conservatives.” He continues,
Of course, this strain has a valued place, but I fear increasingly that libertarians seek that place at the expense of those who hold to a more traditional and communitarian faith. Today, we speak of individual liberty as if the word “individual” were the only adjective that could possibly modify the noun....
To see liberty purely in terms of individual rights is too cramped a view. Democratic liberty is no less real for reflecting a collective view. I am dismayed when I see conservatives leap to the vaguest of phrases in our Constitution such as “privileges or immunities,” the Contracts Clause, the Ninth Amendment, and the Due Process Clause to establish their own set of textually nebulous bases on which to overturn enacted law.
This emerging jurisprudence is nothing but a thinly veiled assault upon labor, social welfare, and environmental legislation, the infirmities of which are political, not constitutional in character. This assault further runs the risk of simply mimicking on the right what I always thought gave us greatest pause in the legal arguments of our opponents.
Setting aside Wilkinson’s debatable assertion about what counts as a vague constitutional provision, he is undoubtedly correct that libertarian legal scholars and activists have pushed the conservative legal movement in a direction that’s more friendly to individual rights and more skeptical towards government assertions of power. Like it or not, libertarians have become major players on the American legal scene.