In Defense of Judicial Activism

D.C. v. Heller and the failures of conservative judicial restraint

Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."

Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.

So it's no small matter that one of the country's most prominent conservative judges is now criticizing Scalia for being a judicial activist. In a provocative new article forthcoming from the Virginia Law Review, federal appeals court Judge J. Harvie Wilkinson III surveys Scalia's recent handiwork in the landmark gun rights case D.C. v. Heller (2008) and finds it seriously lacking. "Heller," Wilkinson writes, "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."

In fact, Wilkinson compares Scalia's opinion in Heller to the Court's recognition of abortion rights in Roe v. Wade (1973), which is about the worst thing one judicial conservative could say to another. In Wilkinson's view, Heller grounded a debatable right in an ambiguous piece of constitutional text, it opened the door to decades of future litigation, it disregarded clear legislative preferences, and it aggrandized the judiciary at the expense of the other branches and the people—"the same sins," he argues, that made Roe so odious.

Wilkinson certainly has a point. Following Scalia's own rhetoric of modesty and restraint, why should the Supreme Court substitute its wisdom for that of the local officials directly accountable to the inhabitants of Washington, D.C.? What makes handgun bans and mandatory trigger locks clearly unconstitutional but not other "longstanding prohibitions," to borrow Scalia's phrase? More importantly, why entangle the federal courts in the political thicket at all? As Justice John Paul Stevens noted in his dissent, "no one has suggested that the political process is not working exactly as it should in mediating the debate between advocates and opponents of gun control."

That's the key point (though Scalia is typically the justice making it). With rare exception, judicial restraint means letting the majority rule. Wilkinson, who clearly disapproves of D.C.'s gun ban, is at least consistent about it. But the whole point of the judiciary is to actively police the other branches, to act, as James Madison put it, as "an impenetrable bulwark against every assumption of power in the legislative or executive."

Wilkinson gets that exactly backwards, writing, "The largest threat to liberty still lies in handing our democratic destiny to the courts." But in fact, the courts have been at their historic best when rejecting the will of the majority and acting in defense of individual rights.

Take Pierce v. Society of Sisters (1925). At issue was an Oregon initiative, which had been spearheaded by the Ku Klux Klan and other anti-Catholic groups, requiring that all children between the ages of eight and 16 attend public school. In his opinion for the unanimous Court, Justice James McReynolds declared that, "the child is not the mere creature of the state" and nullified Oregon's law for unreasonably interfering "with the liberty of parents and guardians to direct the upbringing and education of children under their control."

Under Wilkinson's vision of judicial restraint, however, the Court somehow got it wrong in Pierce yet got it right in Korematsu v. United States (1944), where it deferred to President Franklin Roosevelt, upholding his wartime internment of Japanese Americans. In both cases, Wilkinson's argument is that if the voters have a problem, they should turn to the ballot box, not the courts.

If anything, such examples confirm that the last thing we need is more or better judicial restraint. What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.

Damon W. Root is an associate editor of reason.