In Restraint of Liberty
Citizens United and the problem with conservative judicial restraint
In his dissent from the landmark gun rights ruling in District of Columbia v. Heller (2008), liberal Supreme Court Justice John Paul Stevens charged his conservative colleagues with a surprising crime. "No one has suggested that the political process is not working exactly as it should," Stevens declared. Thus it is "clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today."
Dissenting last month in the free speech case Citizens United v. Federal Election Commission, Stevens repeated the charge of judicial activism, lambasting the conservative majority for "bypassing or ignoring rules of judicial restraint used to cabin the Court's lawmaking power."
Examine virtually any criticism of Citizens United and you'll find a similar complaint. "Make no mistake," declared Loyola law professor Richard Hasen, "this is an activist court that is well on its way to recrafting constitutional law in its image." Liberal columnist E.J. Dionne sputtered at "the Supreme Court's recent legislation—excuse me, decision." Union leaders Ron Gettelfinger and Larry Cohen bewailed the Court's "stunning display of judicial activism that overturned federal and state campaign laws dating back to the early 19th century." University of Chicago law professor Geoffrey Stone described Citizens United as "a very activist decision that will fundamentally transform American politics in the years to come."
While they're wrong about the outcome of the case, these critics do raise a valid point. Every major proponent of judicial restraint has emphasized that the courts should defer to the will of the people and their representatives, and therefore vote to uphold the vast majority of duly-enacted laws. In a famous 1958 lecture at Harvard University, for instance, federal judge and respected legal writer Learned Hand famously likened the Supreme Court to a "bevy of Platonic Guardians," an untouchable elite whose growing influence threatened to undermine the very idea of democratic rule. Were the Court to have the final say on every political question, Hand declared, "I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs."
Conservative federal Judge Robert Bork agreed, writing in his popular 1990 book The Tempting of America that "in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities." Progressive Era Justice Oliver Wendell Holmes—one of judicial restraint's earliest and most influential advocates—put it a little more bluntly: "If my fellow citizens want to go to Hell I will help them. It's my job."
More recently, during his 2005 Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and the popular will that Roberts extended all the way to the abortion-affirming Roe v. Wade (1973), a decision he called "the settled law of the Land."
So following that logic, why shouldn't duly-enacted campaign finance laws receive the same deference from the Court? Or in the case of Heller, why should the courtroom replace the ballot box when it comes to removing gun control regulations?
Applied consistently, judicial restraint offers no satisfactory justification for these decisions, something that the respected conservative legal commentator Stuart Taylor Jr. recently acknowledged. Writing in National Journal, Taylor criticized Citizens United's conservative majority for having "forfeited whatever high ground they once held in the judicial activism debate." Conservative federal Judge J. Harvie Wilkinson said the same thing after Heller, arguing that Justice Antonin Scalia's majority opinion "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 Wilkinson's view, "The largest threat to liberty still lies in handing our democratic destiny to the courts."
But that gets things exactly backwards. Heller and Citizens United were correct precisely because in those decisions the Supreme Court acted to protect constitutional rights from democratic majorities. Indeed, the Court has been at its historic best when doing just that.
Consider Meyer v. Nebraska (1923), which dealt with a state law banning foreign language instruction for young children, passed during the anti-German hysteria of World War I. The Nebraska Supreme Court had upheld the ban, writing, "The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land." Practicing the judicial restraint that he preached, Justice Oliver Wendell Holmes deferred to the state legislature and cast a silent dissenting vote.
Similarly, in Pierce v. Society of Sisters (1925), the Court struck down an Oregon law, which had been spearheaded by the Ku Klux Klan and other anti-Catholic groups, forbidding parents from educating their children in private schools. In his majority opinion, arch-conservative Justice James McReynolds declared, "the child is not the mere creature of the state" and nullified the offending law.
If it had followed the majoritarian, pro-government bias of judicial restraint, the Court would have offered zero protection in such cases, thus nullifying the judiciary's constitutional role and leaving our rights at the mercy of lawmakers. That's the real threat to liberty.
So let's say the Supreme Court did abandon judicial restraint in Heller and Citizens United. Good riddance.
Damon W. Root is an associate editor at Reason magazine.