Conservative Judge Makes the Case for Judicial Restraint


Writing in The Wall Street Journal, Adam J. White reviews Cosmic Constitutional Theory, the new book from conservative Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the 4th Circuit. You may remember Wilkinson as the same jurist who once denounced the Supreme Court's gun rights decision in District of Columbia v. Heller (2008) as a piece of conservative judicial activism. In fact, Wilkinson even compared Justice Antonin Scalia's majority opinion in Heller to the Court's abortion-affirming 1973 decision in Roe v. Wade, which is about the worst thing one conservative judge can say to another.

So it's not exactly a surprise to discover that Wilkinson continues to view Scalia's jurisprudence in a negative light. As White observes in his review of Wilkinson's new book:

The dominant theories of constitutional law are "cosmic," Judge Wilkinson argues, because they "purport to unlock the mysteries of our founding document much as Freud proposed to lay bare all of human behavior and Einstein attempted to explain the universe." The comparisons call to mind Justice Oliver Wendell Holmes, a century ago, scoffing at intellectuals and judges who treated law as if it were rooted in sacred, secret mystery—"a brooding omnipresence in the sky." Like Holmes, Judge Wilkinson urges judges to practice "restraint," leaving many more constitutional issues to be decided by elected officials, not unelected judges.

Judge Wilkinson focuses on four "cosmic" constitutional theories, each anchored in the writings of its major advocates. In a chapter called "Living Constitutionalism," he discusses the late Justice William Brennan's belief in aggressively expanding constitutional protections to achieve liberal political reform, ranging from racial integration to expanded rights for criminal defendants and prisoners. The "Originalism" chapter deals with Judge Robert Bork's and Justice Antonin Scalia's calls on judges to interpret the Constitution according to the Framers' intent….

For all the theories' differences, Judge Wilkinson finds each undermined by the same root flaw—not a lack of theoretical detail or elegance but a lack of real constraint on judicial power. Accordingly, they are "nothing less than competing schools of liberal and judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results." The ultimate victim, he says, is "democracy itself, which theory has emboldened judges to displace."

White goes on to make a strong case for why Wilkinson is ultimately guilty of the same "cosmic" sins as his opponents. Read it for yourself right here.