Last week Sen. Ted Cruz (R-Texas) chaired a Senate subcommittee hearing devoted to finding "possible solutions" to what Cruz described as the dire problem of Supreme Court "lawlessness," "imperial tendencies," and "judicial activism." In Cruz's view, the Court has gone flying off the rails because it failed to adhere to the venerable legal philosophy known as judicial restraint.
In response to that hearing, Roger Pilon, a libertarian legal scholar and director of the Cato Institute's Center for Constitutional Studies, argued that Cruz had gotten the problem exactly backwards. Yes, the Supreme Court frequently makes the wrong decisions, Pilon acknowledged; but the reason why the Court gets it wrong is not due to a lack of judicial restraint. The reason why is the failure to follow "the proper interpretation of the law [or constitutional provision] before the court."
Another libertarian legal scholar, Randy Barnett, recently made a closely related point. The misguided emphasis on restraint "is exactly the problem with the judicial philosophy promoted by many conservatives for the past 30 years," Barnett wrote. He added:
For years, "judicial restraint" has been primarily about not thwarting the will of "democratic majorities." There are myriad doctrines to accomplish this. For example, you adopt a "presumption of constitutionality" that cannot be rebutted. Or find a "saving construction" of a statute to avoid finding it unconstitutional. Or you "defer" to administrative agencies' interpretation of statutes. Or you make a statute "work" as the "legislature intended" (even if that means ignoring the plain or natural reading of its words).
Naturally, Cruz's conservative allies don't appreciate this negative assessment of their work. For example, when the libertarian lawyer Clark Neily, a senior attorney at the Institute for Justice, shared Pilon's article on Twitter last week, he received the following response from conservative legal writer Ed Whelan, a prominent advocate of judicial restraint:
It's true that the libertarian legal movement has joined forces with liberals in certain areas of the law, such as the fight over gay rights. In 2003, for instance, most libertarian lawyers and legal scholars cheered when the Supreme Court struck down Texas' law banning private "homosexual conduct" between consenting adults. I suppose you could call the outcome of that case "progressive," though it hardly seems to count as "statist."
But there's a much bigger problem with Whelan's claim. If you examine the actual legal arguments made by prominent conservative legal thinkers (as I do in my recent book Overruled), you will find that it is the conservatives who routinely adopt legal positions that were first invented or pioneered by the progressive left. It is conservative advocates of judicial restraint, for example, who consistently invoke the writings of Progressive hero Justice Oliver Wendell Holmes. Similarly, it is conservative advocates of judicial restraint who say that the New Deal Supreme Court was correct when it stopped protecting economic rights from government infringement. Conservative Justice Antonin Scalia even went so far as to cast a vote in favor of the New Deal's expansive interpretation of the Commerce Clause in the 2005 medical marijuana case Gonzales v. Raich.
Conservative SCOTUS critic Ted Cruz, meanwhile, recently proposed "an amendment to the U.S. Constitution that would subject each and every justice of the United States Supreme Court to periodic judicial retention elections." Not coincidentally, that bright idea was first popularized on the national stage by the granddaddy of all progressive statists, the trust-busting, warmongering ex-president Theodore Roosevelt. In 1912, when TR was in the midst of mounting a third-party presidential campaign under the Progressive Party banner, he endorsed the popular recall of both judges and judicial opinions. "If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion," Roosevelt wrote, "they have the right to see them enacted into law and become a part of our settled government policy."
As for Whelan's dismissal of Clark Neily as a "useful idiot for progressive statists," I'll just note that Neily happens to be one of the libertarian lawyers who conceived, litigated, and won the landmark Second Amendment case known as District of Columbia v. Heller. Neily's handiwork is nobody's idea of progressive statism. Unfortunately, the same thing cannot be said for the handiwork of legal conservatives who keep promoting judicial deference above all else.