The Conservative Debate Over Judicial Activism and Restraint

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National Journal's Stuart Taylor has an interesting article on the split among some conservatives over just what constitutes the dreaded "judicial activism." Exhibit A is National Review editor Ramesh Ponnuru's controversial New York Times editorial claiming that "when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint." As Taylor puts it, the debate among conservatives over both this issue and over the future of the Second Amendment "dramatize the central problem of constitutional interpretation in today's world: What justification is there for unelected, life-tenured justices to strike down democratic choices based on highly debatable interpretations of ambiguously worded, indeterminate constitutional provisions?"

As I previously argued, Ponnuru was absolutely correct to criticize his fellow conservatives for their inconsistent judicial rhetoric. When the topic is abortion or sodomy laws or gay marriage, for instance, conservatives typically sing the praises of judicial restraint, which Ponnuru described "as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments." Yet very few conservatives wanted the Supreme Court to tip the scales in favor of the local officials in New Haven, Connecticut that famously threw out the test results of firefighter Frank Ricci. But why should the Court "substitute its judgment" in Ricci's case, but not in other cases?

The real problem with Ponnuru's article is his insistence on the virtues of judicial restraint. Whether it's striking down Jim Crow laws that violate property rights, standing up for the right of parents to send their kids to private school, or dismissing the absurd gun control agenda of the District of Columbia, the courts have been at their best when defending the rights of unpopular minorities against overweening governments.

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  1. I say the court should strike down “democratic choices based on highly debatable interpretations of ambiguously worded, indeterminate constitutional provisions”

  2. It is indeed interesting. I’ve generally considered Ponnuru to be an unprincipled tool, but I’ve now learned that he does in fact have principles. I don’t agree with him, but he is learning some consistency.

  3. This debate is as old as Marbury v. Madison, and it’s never going to be fully resolved.

    The English never had to deal with it, because British courts do not have the power of judicial review. Heck, the courts aren’t even a separate branch of government there.

    The Founders had a good idea in separating the judiciary from the elected branches, and in authorizing judicial review in the Marbury decision, but there is always going to be tension between the branches of government as a result. Every instance of judicial review will have detractors and adherents, and the various schools of judicial interpretation will be conveniently used by all parties.

  4. I like the way he complains that the Constitutional provisions he doesn’t like are ambiguously worded and indeterminate. I bet the provisions he does like are models of clarity, in his mind.

    The real problem with modern Constitutional interpretation isn’t the parsing of the Bill of Rights (bad as that is). Its the adamant refusal to strike down laws exceeding the enumerated powers. If the feds were limited to their enumerated powers, half of the Bill of Rights cases would never even arise.

  5. The real problem with modern Constitutional interpretation isn’t the parsing of the Bill of Rights (bad as that is). Its the adamant refusal to strike down laws exceeding the enumerated powers. If the feds were limited to their enumerated powers, half of the Bill of Rights cases would never even arise.

    I agree, RC, but the problem is that the enumerated powers are fairly vague, probably of necessity. That’s how we got into the whole Commerce Clause mess in the first place. If the courts are going to have the power of judicial review, some amount of interpretation is going to be necessary, unfortunately.

    The Supreme Court has always been conscious of the practical limits of judicial review, as evidenced by FDR’s court-packing threats in the Thirties. The Court suddenly, and conveniently, decided that economic rights were inferior to personal rights, with absolutely no textual or historical support. If the Court went about overturned 90% of the laws passed by Congress, I doubt that its independence would last very long.

  6. The Conservative Debate Over Judicial Activism and Restraint
    … is the most dishonest debate there is.

    To conservatives it’s only judicial activism when the judiciary does something they don’t like.

    To me one big problem is the unwillingness of courts to respect the meaning of words.

    Which part of “Congress shall make no law” allows for a commercial speech exception?? Or tiered levels of speech (political speech being more free than non-political speech)

  7. The Supreme Court has always been conscious of the practical limits of judicial review, as evidenced by FDR’s court-packing threats in the Thirties. The Court suddenly, and conveniently, decided that economic rights were inferior to personal rights, with absolutely no textual or historical support.

    The actual historical timeline does not bear out the thesis. And in fact, in the past, the court has been more than happy to say something very impolitic or unpopular and then be ignored by the powers that be (Worcester v. Georgia, ex parte Milligan, Brown v Board pt I)

  8. The English never had to deal with it, because British courts do not have the power of judicial review. Heck, the courts aren’t even a separate branch of government there.

    Historically it wasn’t an issue in England because English Common Law was entirely judge/court made to begin with. The rise of statutory law as the predominant form of law is relatively recent.

  9. I have never once met someone who was honest about being for/against judicial restraint (to the point when they always argued the same way, even if they disagreed with the outcome.)

  10. I’m not sure it’s as much a contradiction as it is shorthand language. Sure, “judicial restraint” can cut both ways, but I think conservatives mean something like “restraining from overturning precedent/tradition without a good reason” or “restraining from stretching the Constitution out of recognizable shape to attain a certain policy objective.”

    Very few conservatives these days would object to judges striking down segregation laws, but Roe still rankles. (The same justices who support gun control despite the pretty-darn-clear 2nd Amendment suddenly find an iron-clad right to abortion somewhere in there? Or campaign finance laws that restrict political speech somehow don’t conflict with the 1st Amendment? Come on….)

  11. Some Guy-

    Try me.

  12. Its the adamant refusal to strike down laws exceeding the enumerated powers. If the feds were limited to their enumerated powers, half of the Bill of Rights cases would never even arise.

    Its the adamant refusal to strike down laws exceeding the enumerated powers.

    Amen.

    I agree, RC, but the problem is that the enumerated powers are fairly vague

    Bullshit. Look at Article I, Section 8. The list isn’t that long:

    To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
    To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

    That is the list. I don’t see telecommunications regulation, the power to enforce child support orders, health care, airline regulation, the authority to regulate drugs, CAFE standards, 5 gallon toliets, picking up eagle feathers, family law issues, employment law issues, OSHA, when I can put an ad on TV for an election etc… ad nauseum. Hell, in doesn’t specifically say that it can make felonies WITHIN the US. The commerce clause is HOW commerce is transacted, not what is transacted.

    This is a SMALL list. And the vast majority of federal law is not in this list. And the fact that SCOTUS is going to tell us that it is and that the emperor is wearing clothes just goes to show they are no more intellectual honesty that your typical chicago thug. Fuck ’em.

  13. “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

  14. And in fact, in the past, the court has been more than happy to say something very impolitic or unpopular and then be ignored by the powers that be (Worcester v. Georgia,

    Yeah, I can’t believe a genocidal prick like Andrew Jackson manages to ignore the Marshall trilogy then sends all those Indians on a death march, then we put him on the $20.00 bill.

  15. Andrew Jackson shut down the Second Bank of the United States, so he deserves some credit.

  16. Andrew Jackson shut down the Second Bank of the United States

    It is for this very reason that it is fitting he be on the 20. He’d hate it, the genocidal prick.

  17. I’m not the first to write this, but the first thing you have to realize about the Constitution is that it was a political document when it first came into being and remains so.

    ChrisO,

    One of the main reasons that the Supreme Court felt comfortable overturning the AAA, the NRA, etc. was that the public didn’t like the programs.

    Elemenope,

    The Jackson administration got rid of the second BUS in large part to reward state banks; it wasn’t all that principled in reality.

  18. The issues brought up in this article are not as cut and dry as the author suggests. His conclusion is that conservatives are hypocritical for selectively striking down laws as unconstitutional while upholding others.

    However, the issue is to examine the laws/policies themselves in light of the Constitution. Its a difference between stretching the Constitution like silly putty to achieve the desired outcome and finding a blatant violation or disregard of fundamental rights.

  19. The Jackson administration got rid of the second BUS in large part to reward state banks; it wasn’t all that principled in reality.

    Oh I know there was a pecuniary motive, but nonetheless I can’t help but think that something like the Federal Reserve would have gone right up his ass sideways.

  20. When the topic is abortion or sodomy laws or gay marriage, for instance, conservatives typically sing the praises of judicial restraint, which Ponnuru described “as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.” Yet very few conservatives wanted the Supreme Court to tip the scales in favor of the local officials in New Haven, Connecticut that famously threw out the test results of firefighter Frank Ricci. But why should the Court “substitute its judgment” in Ricci’s case, but not in other cases?

    Well, it’s really pretty easy. In the case of Ricci, the court upheld the civil rights laws. In the case of Roe, the court struck down a law of a state. What’s the problem here?

    PS: There is nothing inconsistent about the court striking down a law that is unconstitutional and affirming a law that is constitutional. As RC points out, the constitution is not long, and easy to understand. Just read the darn thing.

  21. I think it is more apt to question the inconsistency of the Left on some of these issues. If the New Haven FD was promoting white firefighters with lower test/fitness scores than blacks, it would be struck down 9-0. However, when the reverse occurs its 5-4.

  22. ‘But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.’

    That’s right, Lysander, blame the victim!

    The whole problem with the ‘judicial restraint versus judicial activism’ debate is that it is court-centric. It presupposes the Court is legitimately acting as a secular Magisterium to tell us what the Constitution means – not only what it means to the parties to a single case, but what it means to other branches of the government, and what it means to us as citizens.

    One of the issues on which, IMHO, Lincoln was right is on this very point, as expressed in First Inaugural Address:

    ‘I do not forget the position, assumed by some, that Constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.’

    The part about the Supreme Court being surprised at seeing its decisions turned to political purposes may have been tongue in cheek, but otherwise Lincoln meant it, and he’s quite right.

    Whatever we may say about the effect of a decision as between particular parties, it is absurd to suggest that other branches of government is bound, when making policy, to accept the Supreme’s interpretations as actually what the Constitution means – until the Supremes themselves say they were wrong the first time, which they do in a surprising number of cases.

    In deciding whether to pass a bill, Congress is not bound to assume the bill would be constitutional just because the Supreme Court upheld similar legislation. Ditto when the President is deciding whether to veto a bill. In deciding whether to pardon a convicted person, the President is not bound to assume that the offender’s rights were respected at trial, or that the law he’s convicted of violating is constitutional, simply because the Supremes said in related cases that such laws and procedures are constitutional.

    And so on.

  23. Thus, focusing the debate on the courts simply takes the heat off other political actors.

    Having said this, let me emphasize that the courts as well as others must interpret the Constitution according to their best lights. Just as Congresspeople are obliged to vote against bills they conscientiously believe unconstitutional, so are courts obliged to make rulings they believed to be compelled by the Constitution regardless of whether other branches like it or not.

    How is the tension to be resolved? Maybe it’s the tension itself, as Frank Meyer claims, which is the intended way for Constitutional disputes to be hashed out – different levels and branches of government have different ways of understanding the Constitution, and they fight it out amongst each other. (Here is where Lincoln went awry – instead of having the Supreme Court be our Magisterium, Lincoln suggested the majority might fill that role).

  24. What is interesting is that many people who passionately want the Supreme Court to fill the role of secular Magisterium are bitterly opposed to the *real* Magisterium, but that is another issue.

  25. Judicial restraint isn’t determined by whether the court acts to invalidate legislative action or refrains from doing so.

    It is determined by whethter the court adheres to the actual text of the Constitution as per the common understanding of what the words contained therein meant at the time the founding fathers ratified them as a basis for determining cases or instead chooses to take the “living document approach and make stuff up. Either approach can result in allowing or invalidating the actions of legislative bodies depending on the issue at hand and circumstance.

  26. “What is interesting is that many people who passionately want the Supreme Court to fill the role of secular Magisterium are bitterly opposed to the *real* Magisterium, but that is another issue.”

    Real Magisterium?

    There is no “real” Magisterium.

    The Q Continuum rules over all.

  27. …the courts have been at their best when defending the rights of unpopular minorities against overweening governments.

    John Marshall Harlan’s dissent in Plessey v. Ferguson – which should have been the cornerstone of Brown.

    Majorities don’t need protection.

  28. Wait a minute, do Jim Crow laws violate property rights or does striking them down?

  29. “I think it is more apt to question the inconsistency of the Left on some of these issues.”

    It is difficult to make a charge of inconsistancy stick when the accused admits to having no principles, which is the case with beleivers in the Living Constitution.

  30. Wait a minute, do Jim Crow laws violate property rights or does striking them down?

    Kind of an unfair jab by the author at the conservative legal movement. Never heard of “jim crow” being one of their rallying cries.

    The Jim Crow laws which instituted segregation in the public sector (busses ect) violate the 14th Amendment.

    However, to the extent that the 1964 act affected private sector is an encroachment of property rights.

  31. Wait a minute, do Jim Crow laws violate property rights or does striking them down?

    Wait a minute, are you a fucking idiot or do you just act like one around here?

    Hey Willie, if you really don’t know the answer to your own question then I think we know the answer to mine.

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  33. Conservatives have long been disingenuous regarding judicial activism. They hate it when it goes against their beliefs, and love it when it favors them. Of course, when if favors them they don’t call it judicial activism.

  34. Don’t really get Rammesh’s point. The part of the Civil Rights Act which principled conservative and libertarian judges would rule unconstitutional pertains to private business and private actors. But the Ricci case revolved around state discrimination. There is a strong conservative/libertarian case that incorporation never should have happened, in which case I suppose the case would be made that all state level racial discrimination is ok, but I know of no conservative member of the court who holds that particular view. There really was no controversy in the Ricci case. Whether one is a strict constructionist or a living constitutionalist the outcome is the same.

  35. There is a strong conservative/libertarian case that incorporation never should have happened,

    Yes and no. Incorporation of the BOR against the states is clearly the intent of the Privileges and Immunities Clause, but the incorporation doctrine as spelled out by the Court is based, rather bizarrely, on the Due Process Clause.

  36. Judicial activism is like the vegetables that come with your steak and potatoes, yeah, you need a little of it to keep you functioning, but too much and you turn into a whack-job vegetarian.

  37. ‘There is a strong conservative/libertarian case that incorporation never should have happened, in which case I suppose the case would be made that all state level racial discrimination is ok, but I know of no conservative member of the court who holds that particular view.’

    I would suggest that the original-understanding argument comes down to this (both in the courts, in other branches of government, and among the citizens – among everyone who rightly views the original understanding as the standard of interpretation): Was Sec. 1 of the Fourteenth Amendment meant to be a broad ban on invidious discrimination of various kinds, or did it have a more limited purpose? The latter school holds that Sec. 1, Amendment 14, was aimed at ‘constitutionalizing’ the Civil Rights Act of 1866 (which is still on the books in slightly modified form). This statute provides that, with respect to certain basic rights, nonwhite citizens (or native citizens) will have the same rights as white citizens under state law. The rights protected are such things as the right to sue, be parties, give evidence, own property, and a couple others. Voting and holding government jobs were *not* among the listed rights.

    So, if Sec. 1, Amendment 14 was simply meant to constitutionalize the 1866 statute, then the white firefighters in New Haven would not be protected. They automatically have, by definition, the same rights as white citizens. Treating nonwhite citizens better than them isn’t a violation. Also, government jobs are not among the rights protected against discrimination.

    So that’s the focus of the debate. There are those who say that given the 14th Am’s broad anti-discrimination language, which doesn’t mention the limitations of the 1866 Act, the purpose was broader. This brings up the question of the scope of the clause, since just about every law discriminates in some way, so the question is what’s invidious and what isn’t.

  38. (or native nonwhite citizens)

  39. The incorporation of the Bill of Rights is a separate debate, as far as the New Haven firefighter are concerned.

  40. So, if Sec. 1, Amendment 14 was simply meant to constitutionalize the 1866 statute, then the white firefighters in New Haven would not be protected. They automatically have, by definition, the same rights as white citizens.

    Oddly, I don’t believe the 1866 statute makes any reference to the race of citizens, except to say that all citizens of any race have eual rights. Thus, it would apply equally to protect all citizens against discrimination based on their race, and even this narrow interpretation of the 14th Amendment would outlaw racial discrimination against whites.

  41. Wow, I kind of fell behind on this thread.

    Historically it wasn’t an issue in England because English Common Law was entirely judge/court made to begin with. The rise of statutory law as the predominant form of law is relatively recent.

    But English courts have never had the power to overturn Acts of Parliament or royal decrees. U.S. federal courts do have that power of judicial review.

    The actual historical timeline does not bear out the thesis. And in fact, in the past, the court has been more than happy to say something very impolitic or unpopular and then be ignored by the powers that be (Worcester v. Georgia, ex parte Milligan, Brown v Board pt I)

    The New Deal-era Court is controversial, and I won’t wade into that. They did, very conveniently, espouse an entirely new and unprecedented model of subordinating economic rights just at the time when the elected branches of government needed it in order to greatly expand their power. Threats or true convictions, it doesn’t really matter.

    Your point about the Jackson administration cases is well-taken, and I’m one that the Court is quite aware of when deciding whether to go against a popular president.

    The whole problem with the ‘judicial restraint versus judicial activism’ debate is that it is court-centric. It presupposes the Court is legitimately acting as a secular Magisterium to tell us what the Constitution means – not only what it means to the parties to a single case, but what it means to other branches of the government, and what it means to us as citizens.

    Members of the founding generation themselves decided that issue for good in Marbury v. Madison. However, I’m not sure Justice Marshall intended that the the Court be the sole interpreter of the Constitution. His hope was probably that the other two branches would show more restraint in pushing against constitutional boundaries. And they did, for awhile. But somebody or other does have to have the final say on interpretation.

    I used to be a passionate strict constructionist, maybe even a pure textualist. But over time, I’ve come to realize that a lawyer is always going to argue any rationale that serves his client’s interest, and applies to constitutional issues just as much as anything else. As a lawyer, I don’t get to shape my client’s legal strategy merely on the basis that I don’t like the doctrines of, say, strict product liability or res ipsa loquitor.

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