The Conservative Debate Over Judicial Activism and Restraint


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.