Constitutional Law

Will Conservatives Learn to Stop Worrying and Love Judicial Activism?

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George Will thinks they should. Writing in yesterday's Washington Post, Will makes a superb case that conservatives will need to drop their misguided embrace of judicial restraint in the looming legal battle against ObamaCare:

Judicial review—let us be candid: judicial supervision of democracy—troubles people who believe, mistakenly, that the Constitution's primary purpose is simply to provide the institutional architecture for democracy. Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, "judicial activism."

More truly conservative conservatives take their bearings from the proposition that government's primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual—basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts' role in that protection.

That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers. This obligatory engagement with the Constitution's text and logic supersedes any obligation to be deferential toward the actions of government merely because they reflect popular sovereignty.

Read the whole thing here. I make the case for libertarian judicial activism here and here.

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  1. George Will the poster child of sunshine patriots.

    1. Patriotism is not majoritarianism.

  2. Such people believe that having government by popular sovereignty is generally much more important than what government does; hence, courts should be broadly deferential to preferences expressed democratically. This is the doctrine of those conservatives who deplore, often with more vigor than precision, “judicial activism.”

    Am I the only lawyer here who finds this to be a pretty odd understanding of judicial restraint? I would call Will’s topic judicial deference, not judicial restraint. Judicial restraint (as I’ve always understood it) is about deciding issues narrowly and making new law in the smallest possible increments, not about how deferential the court is to the legislature.

    1. That is correct.

      1. Woohoo! I’m not dead yet.

        1. Correct on terminology. I agree whole heartedly with Will, but I have to say that of all areas of government, the role of the Courts is the least well defined. However, the concept of judicial restraint (at least to me) does logically follow from what the clear intention of the primary drafters of the Constitution (just read the freaking Federalist Papers) were when the structured our government.

          All this said, I wish Will would be equally ok with Courts’ decisions striking down other majoritarian encroachments on individual liberty that don’t jive with conservative views of morality.

  3. Fuck George Will. Enforcing the Constitution as written is not judicial activism. Screw will for perpetuating this ridiculous myth.

    1. Except, as many conservatives have defined judicial activism, it is. Actually, they usually label cases they don’t like as judicial activism and ignore things like Raich or the “Bong Hits 4 Jesus” guy. Loving v. Virginia is frequently used as an example of judicial activism.

      1. Came here to say this. Anyone who actually believes that any group actually believes in judicial restraint is insane.

        I have never met or even heard of a person who has argued for “judicial restraint” in any case where that restraint would go against their preference.

        1. Then you haven’t read the comments here about gay marriage.

    2. Figuring out what “the constitution as written” means is not always an easy task. “Judicial activism” is a term used by people when courts rule in ways they don’t like.

      1. Sometimes. However, it is not particularly difficult to see that Obamacare is unconstitutional.

      2. It’s quite easy in fact. The constitution spells out certain enumerated powers of congress, then says anything else not delegated to congress belongs to the states or the people.

        1. C’mon, querty… the Tenth Amendment is soooo last century.

        2. +1

          It’s only murky because the courts basically decided that economic liberty was not on par with other rights. Once that Rubicon was crossed, the green light was up for the Federal Gov’t to do anything

  4. These conservatives favor judicial activism understood as unflinching performance of the courts’ role in that protection.

    That role includes disapproving congressional encroachments on liberty that are not exercises of enumerated powers.

    You really think Judges will favor emptying the trough they feed from? Or what do you think are the implications of disapproving the encroachments on people’s rights, if not to hinder the despoiling of their property?

    Get it through your head: The tax-consumers will never ever rule in favor of their victims.

    1. Judges and justices generally don’t get lobbied the way legislators do. Cheer up, Eeyore.

      1. No need – they know where their checks are issued from.

  5. Socrates could have used some judicial activism. It could have saved him from the tyranny of the majority that denied him his freedom of speech and freedom of religion.

    1. Let’s say Athens had a First Amendment. Would ruling the law prohibiting corrupting the youth unconstitutional and throwing the case out have been “judicial activism”? If it was, how is any decision that is against the state not?

      1. My point is that (classically) liberal democracy is not the same thing as pure majoritarianism.

        1. I agree. And enforcing the Constitution as written is not judicial activism.

          1. John, I think you may actually agree with George Will without realizing it, because you don’t understand the term “judicial activism” the same way he does.

            1. As a matter of fact, I think that is the main thrust of the article – much like calling progressives “liberals”, what the term actually means and what it has come to mean are not the same

      2. Depends on what you mean by “judicial activism”. It seems to me that most people use that term to mean judicial decisions they don’t like. As such judicial activism is a pretty useless term and no one should use it except to refer to stupid arguments about it.

        1. I think “judicial activism” means something. I think it can be defined as results based jurisprudence. Judicial restraint is reading the law without regard to its consequences on the parties. Judicial activism is picking a desired result and torturing the law to produce it.

          1. Given that definition, I agree with everything you have said. My problem is that I find that “judicial activism” is one of those terms that may have once meant something, but has been so abused that it has lost usefulness in public discourse.

            1. I totally agree that partisans on both sides have repeatedly raped the term.

            2. And raped it Steve Smith style.

    2. At least he was not called an “Enemy Combatant”. He had that much . . .

      1. Millions of POWs have spent years in prison over the course of hundreds of years without one once of due process.

        1. AP Sources: DC trial eyed for Gitmo terror suspect:

          WASHINGTON ? An intense security review is under way as the Obama administration considers holding a trial in Washington for the Guantanamo Bay detainee suspected of planning a deadly Bali nightclub bombing, a move that would bring one of the world’s most notorious terrorism suspects to a courthouse just steps from the Capitol, officials said.

          http://news.yahoo.com/s/ap/201…..namo_trial

  6. APNewsBreak: Obama to Massachusetts (AP)

    http://news.yahoo.com/s/ap/201….._successor

    1. I don’t see how that puts the fix in. Obama campaigned like crazy for Corzine. A lot of good it did him. I am not sure what to make of that. Are they really that desperate to risk Obama’s credibility like that? If Brown wins, Obama is going to look awfully foolish. That is a big risk.

      1. Obama’s credibility celebrity.

        Obama already looks foolish, save the die-hard hope and changers.

    2. I hope he helps Coakley every bit as much as he helped Corzine.

    3. Current polls have Brown at 50% and Coakley at 46%. Supposedly, Coakley’s own camp thinks they’re down by 5%. I’ll try and get a source on that, but a bunch of Democrats were bitching on DailyKos (I need a good laugh every now and then and nothing does it like their delusional comments section) about how Coakley’s camp had themselves as down by “5% at best”, so if the brainwashed are saying that, then it’s possibly as bad as 10%.

    4. Here’s what I find striking:

      “After meeting Saturday with George W. Bush on Haiti, Obama goes to Boston Sunday, arguing that Scott Brown is as bad as George W. Bush.”

      – Jim Geraghty via Twitter

    5. That might be a tremendous mistake. If Brown wins, it’ll be Obama’s 1,000th error. I don’t think that would be good for his reputation.

      As far as judicial restraint goes, even from the non-libertarian perspective, I think it should be used when dealing with government actions or legislation that don’t directly involve questions of constitutionality. When such questions are invoked by a case, then judges should be pretty aggressive in striking down such laws. Deference to government has been a major impediment against the courts acting effectively as a check on power.

      1. Holmes’s Lochner dissent. The gift that keeps on taking.

        1. Economic freedom is protected by the Constitution, too. Be nice if someone acknowledged that.

      2. “That might be a tremendous mistake. If Brown wins, it’ll be Obama’s 1,000th error. I don’t think that would be good for his reputation.”

        Surely you must be joking?

      3. My question is this:
        What kind of legislation doesn’t involve questions of constitutionality?

        1. In theory, none. In practice, anything that falls within accepted government practices and that doesn’t impinge on someone’s liberty.

    6. Hopefully it goes as well as his Olympic Committee visit went.

  7. I hope that I’m never fooled into believing that my liberty is up to a man wearing a black dress whose most exciting moments include banging a pussy version of a hammer into a pretended nail as he yells “Order! Order!”

    It would only be worse if he wore a wig and thought he owned my body. Luckily, I think they’ve done away with the wig part.

    1. Luckily, I think they’ve done away with the wig part.

      Some have, some haven’t.

  8. Deference to government has been a major impediment against the courts acting effectively as a check on power.

    Game recognize…itself. Power is inseparable. The founders were kinda dumb about that.

    Except for that “tree” thing.

  9. Men more evolved? Y chromosome study suggests yes!

    WASHINGTON (AP) — Women may think of men as primitive, but new research indicates that the Y chromosome _ the thing that makes a man male _ is evolving far faster than the rest of the human genetic code.

    A new study comparing the Y chromosomes from humans and chimpanzees, our nearest living relatives, show that they are about 30 percent different. That is far greater than the 2 percent difference between the rest of the human genetic code and that of the chimp’s, according to a study appearing online Wednesday in the journal Nature.

    These changes occurred in the last 6 million years or so, relatively recently when it comes to evolution.

    “The Y chromosome appears to be the most rapidly evolving of the human chromosomes,” said study co-author Dr. David Page, director of the prestigious Whitehead Institute in Cambridge and a professor of biology at MIT. “It’s an almost ongoing churning of gene reconstruction. It’s like a house that’s constantly being rebuilt.”

    http://www.baynews9.com/content/36/2010/1/13/569590.html

    1. These changes occurred in the last 6 million years or so, relatively recently when it comes to evolution.

      Yes, we stopped calling our dwellings “caves” and now we call them “Man-caves.”

    2. This seems pretty obvious to anyone that has ever had an experience with a female driver.

      1. The Chinese think so, anyway.

    3. “It’s an almost ongoing churning of gene reconstruction. It’s like a house that’s constantly being rebuilt.”

      Probably because it has an X chromosome right next to it bitching about how everything in that house needs changing and some new furniture would be cool and what about painting the ceiling taupe instead beige and we need a new sink in the kitchen. You get the same bitching with two X chromosomes, but neither can actually do the work.

    4. Y is defective to begin with and therefore is required to evolve or risk extinction. We women are just already perfect.

  10. ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
    WITNESS: No.
    ATTORNEY: Did you check for blood pressure?
    WITNESS: No.
    ATTORNEY: Did you check for breathing?
    WITNESS: No.
    ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
    WITNESS: No .
    ATTORNEY: How can you be so sure, Doctor?
    WITNESS: Because his brain was sitting on my desk in a jar.
    ATTORNEY: I see, but could the patient have still been alive, nevertheless?
    WITNESS: Yes, it is possible that he could have been alive and practicing law or serving in Congress.

    1. I seem to recall that’s a true story.

    2. Wow, that is an epic burn if that is real.

      1. ATTORNEY: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?

        WITNESS: Did you actually pass the bar exam?

  11. “More truly conservative conservatives take their bearings from the proposition that government’s primary purpose is not to organize the fulfillment of majority preferences but to protect preexisting rights of the individual?basically, liberty. These conservatives favor judicial activism understood as unflinching performance of the courts’ role in that protection.”

    The problem is that the courts role was not defined clearly enough in the Constitution. Also, and I say it every day, when will we stop calling our system a democracy? I hate that mob rule shit and so did the founders.

  12. Damn you, NutraSweet!!

    http://corner.nationalreview.c…..FhOTZmOGQ=

    The Massachusetts Show

    …It’s the economy! It’s the obstructionism of the Republicans and that satanic whatchamacallit, the filibuster. Jupiter is aligned with Mars, NutraSweet has poisoned the water supply…

  13. I would agree that the term judicial activism has been hopelessly corrupted.

    It is emphatically the province of the judiciary to strike down laws that violate the Constitution.

    It is not the province of the judiciary to rewrite laws, or just plain old write laws, to create compliance with the Constitution.

    For example, assuming that hetero-only marriage laws violate the Constitution:

    Striking down those laws = proper judicial activity.

    Amending those laws to allow gay marriage = legislating from the bench, or improper judicial activity.

  14. I’m a bit more radical than George Will on this question. I’m for whatever advances the cause of liberty. If that’s judicial activism in one case, I’m for it. If that’s judicial restraint in another case, I’m for it. I’m for rolling back every single unconstitutional law, no matter how long ago the case was decided, and no matter how many lives are turned upside down by the reversal. I just can’t agree with a conservative that would rail against the Health Care Rape Act of 2009 in 2009, and then defend it to the hilt as established law in 2012 if a court in 2010 ruled that it’s constitutional. Nothing like this verminous and putrescent legislation could ever be constitutional, and I think judges who find it to be so should be overruled later. Actually, something else should happen to them too, but I’ll leave that to the reader’s imagination.

    1. William Roper: So, now you give the Devil the benefit of law!

      Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

      William Roper: Yes, I’d cut down every law in England to do that!

      Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

      1. Love that bit of dialogue.

  15. I’m for whatever advances the cause of liberty. If that’s judicial activism in one case, I’m for it. If that’s judicial restraint in another case, I’m for it.

    Careful, Draco. We need to be thinking about which approach increases liberty in the long run. Remember the Iron Law:

    Me today, you tomorrow.

    Cryptic, I know, but in this case, it means to be aware that a power judges use to advance liberty today can be used by them to restrict liberty tomorrow.

    1. At the same time, we’ve seen that judges are going to restrict liberty to advance their own agenda even if judges on the other side haven’t done so.

  16. Clint Bolick (co-founder of the Institute for Justice) wrote a great book on this subject in 2007, “David’s Hammer: The Case for Judicial Activism” (published by CATO). Well worth the read.

    Will’s first definition of Judical Activism (“…courts should be broadly deferential to preferences expressed democratically.”) Bolick terms “Judical Lawlessness”.

  17. So, um, are we defining “judicial activism” here as “activity by the judical branch” or the definition “activism by the judicial branch”?

    Because, you see, everywhere else the word “activism” is used in political discussions, it means “pushing social reform of a nature supported by the political left”. See, oh, “civil rights activism”, “environmental activism”, “peace activism”, “student activism”, “gay rights activism”, “youth activism”, “animal rights activism”, “gun control activism” . . .

    It is, perfectly possible to oppose judicial activism while praising, say, the Hughes Court overturning New Deal laws. You just have to use the usual definition of activism.

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