Is Justice Antonin Scalia a Judicial Activist?


In the latest edition of the Cato Institute's excellent Cato Unbound, Robert Levy has a fascinating article on the future after D.C. v. Heller. It's a great piece, examining both the likely fate of various gun control laws, the legal and political ramifications of the ruling, and the perennial question of whether the Court's actions count as judicial activism or judicial restraint. As Levy notes, Justice John Paul Stevens chastised Scalia in his dissent for entering the "political thicket" of gun control, the sort of charge normally made (at least these days) by conservatives against liberal judges. Is Stevens right? Did Scalia arrogantly and inappropriately substitute his views for those of the people of Washington, D.C. (via their local officials)? Here's Levy:

Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

That's the crucial point: The Court has a duty to nullify unconstitutional laws, regardless of what the majority has to say about it.

Whole thing here.