Judicial Activism and the American Right


In his recent comments urging the Supreme Court to uphold his health care overhaul as an act of deference to "a democratically elected congress," President Barack Obama also chided conservatives for abandoning the cause of judicial restraint. "I just remind conservative commentators that for years, what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint," Obama said. "Well, this is a good example."

It's true that many conservatives have long preached judicial restraint. But those conservatives are not the only intellectual force at work within the larger conservative legal movement. Libertarian legal theorists, including NYU law professor Richard Epstein and Georgetown law professor Randy Barnett, have spent the last few decades making their own powerful arguments in favor of a principled form of judicial engagement. In Barnett's view, for example, rather than practicing judicial restraint, the courts should adopt a "presumption of liberty," meaning that the government should be required "to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow 'fundamental.'"

Another key figure in the libertarian legal school is Roger Pilon, the director of the Cato Institute's Center for Constitutional Studies. In a superb new post at Cato's blog, Pilon offers his firsthand take on this longstanding debate over judicial activism:

In brief, the complaint about judicial activism emerged from what many conservatives saw as the "rights revolution" that was brought about by the Warren and Burger Courts, starting in the 1950s….

With the onset of the Reagan administration, however, and the advent of the Rehnquist Court in 1986, the conservative critique moved to center stage. In the hands of Attorney General Edwin Meese, Judge Robert Bork, and many others, it became a call not simply for "judicial restraint" but for "originalism"—for applying the law as understood by those who drafted or ratified it. That was an important shift, because the focus was now more squarely on the law itself, not more narrowly on the behavior of judges.

But that shift helped to bring out a split that had been growing on the Right. Back in the 1970s a few of us had reservations about the very "rights revolution" thesis. After all, America was conceived in the name of natural rights, so why were conservatives, in their critique of judicial activism, so hostile to such rights—and, of special importance, so deferential to the state and federal legislatures whose acts so often violated them? To be sure, the conservative critique of the Warren and Burger Court's was often on the mark, but not always. Moreover, weren't those conservatives, professing to be opponents of big government, ignoring the fact that it was the political branches—during the Progressive Era, the New Deal, and the Great Society—that had given us big government?

This is just a sampling of Pilon's superb post. The whole thing is well worth your time, including his argument for why many conservatives now "recognize that there is all the difference in the world between judicial activism and an active judiciary." Read it for yourself.

And for even more on the judicial activism debate, check out my article "Conservatives v. Libertarians."

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  1. You know you’re intellectually bankrupt when all you can muster is an appeal to hypocrisy. But then again, the ends always justify the means.

    1. There comes a point when hypocrisy becomes so breathtaking as to undermine an entire political philosophy, as in the case of the American right. When you say you’re for small government but want government in everyone’s bedroom or waterboarding people; or when you say you’re for judicial restraint except when you’re not, it becomes clear that these are merely empty slogans, political tools for political ends.

      1. “or waterboarding people”

        It doesn’t take a legion of government workers to waterboard two people over a ten-year period.

      2. Guess it’s a good thing we aren’t Republicans.

      3. You again miss the point. It’s not a matter of waterboarding or poking one’s nose into bedrooms. It’s about following the black letter meaning of the Constitution. There are some perfectly awful things that are absolutely constitutional.

    2. Thus, contrary to the beliefs of millions of suckers, they should not be taken seriously when they’re using these slogans. Both sides have a vision of how society should be ordered. Neither is for less or more government than the other.

  2. so, again, you have allowed the left to dictate the terms of an argument. What bullshit. It’s not activism when judges decide if legislation is actually legal. It’s the whole point behind SCOTUS.

    Activism is when you create legislation from the bench, not when you review it. An active judiciary is a nice defense against a hyperactive legislative branch.

    1. It’s not activism when judges decide if legislation is actually legal.

      Actually, in the cases of courts striking down anti-gay statutes, that’s precisely what republicans claim. That declaring the legislation invalid allows a tiny elite to defy the will of the majority, which they call judicial activism.

      1. If Pilon is going to use Brown, shouldn’t he also use Roe? Why duck the most obvious case of supposed “activism”?

        Roe didn’t just protect one group’s rights. In the mind of the objectors, it dispensed with another group’s rights. It’s this type of subjectivism that some (I think rightly) feel is better to be Democratically decided.

      2. Exactly how did the understanding that marriage was a relationship between two people of opposite sexes become unconstitutional over 200 years after the adoption of the Constitution? What changed, besides social activist judges throwing out custom becuase it does not fit their progressive mores?

  3. “It’s not activism when judges decide if legislation is actually legal. It’s the whole point behind SCOTUS.”

    Actually, SCOTUS didn’t have that power until they gave it to themselves in Marbury.

    1. They didn’t not have it either. It simply wasn’t explicit.

  4. As with other 10th Amendment cases, this isn’t the case of an
    elected body vs. unelected judges, it’s an elected federal body (Congress) vs. elected state bodies (legislatures and local govts), with the unelected Sup. Ct. being asked to serve as referee.

    If compulsory health insurance doesn’t come within the power of Congress, it’s for the states.

    But to some people, Congress is the only relevant elected body, and a limit on Congress is a limit on teh Democracy, because no other elected body counts for jack.

    1. Really, with a slogan like deference to elected bodies, how do you account for conflicting policies by (say) Congress and a state legislature? They’re both elected, aren’t they?

    2. Nice angle.

  5. Obama considers the possibility of SCOTUS overturning the Obamacare’s individual mandate as judicial activism. Most people on the right considered the Kelo decision as judicial activism. What is the difference? Both cases hinge on the idea that the policy goals of government should trump the citizen’s right to decide what is in his own best interest in such a fashion that make any restrictions on government power purely theoretical.

    And again, the Obama adminsitration is on record as saying that the 1st Amendment does not prevent the government from censoring political press. How does Obama have any credibility on what “judicial activism” is?

  6. “President Barack Obama also chided conservatives for abandoning the cause of judicial restraint. “I just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint,” Obama said. “Well, this is a good example.”

    The only thing it’s good example of is the liberal bullshit effor to redefine what constitutes “judicial activism”.

    REAL judicial activism has nothing to do with whether a court invalidates something done by a legislative body or not.

    REAL judicial activism has to do with judges basing their decision on something other than what the Constitution literally says and what the common understanding was of what the words meant to those who drafted them and ratified them at the time they did so.

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