Faced with a string of Supreme Court ruings in cases dear to liberal hearts regarding campaign censorship and gun control, America’s liberals are taking up a new line of argument regarding the courts by accusing the right of being hypocritical on the subject of “judicial activism.”
It’s a rather convenient argument and certainly comes in reaction to conservative and libertarian groups’ now-successful attempts to use the courts to their advantage as the left has done for decades.
Syndicated columnist E.J. Dionne summed up this latest line in his reaction to the Elena Kagan confirmation hearings:
And it was Republican senators who seemed to be begging her to be a judicial activist and overturn the enactments of Congress. Thus did Sen. Tom Coburn ask her if she would rule against a law requiring Americans to eat a certain number of fruits and vegetables.
“Sounds like a dumb law,” Kagan replied, and then she spoke admiringly of Justice Oliver Wendell Holmes who “hated a lot of the legislation that was being enacted” in the early years of the 20th century “but insisted that if the people wanted it, it was their right to go hang themselves.”
“Judges,” Kagan declared, “should realize that they’re not the most important people in our democratic system of government.” It’s a line that might usefully be engraved on a wall of the U.S. Supreme Court building.
Yes, Republicans seemed to be admitting implicitly, it is the conservatives who are now the judicial activists. That’s why they moved on during these hearings to a new attack line against liberal jurists as being “results-oriented.”
Unfortunately, Dionne, is missing the first half of the argument to which he is responding. The full argument might be summed up thusly: The Constitution and its various amendments were specifically designed to create a very small role for the federal government, thus, judges should exercise extreme restraint when it comes to their rulings.
Under this rubric, if one can establish legal-historical grounds for the notions that the second amendment pertains to individuals, that abortion is not a right encapsulated in any clause or amendment, or that political free speech is the primary concern of the first amendment, justices may indeed overturn statutes pertaining to these subjects without running afoul of the concept of judicial restraint.
The reason? At its core judicial restraint is merely an outgrowth of governmental restraint. That is why “originalism” is a better term for this philosophy rather than “judicial restraint.”
In the same vein, justices ought to have no compunction about revisiting prior cases decided by past courts on grounds that betrayed the idea of confined government. As Tom Goldstein at SCOTUSblog puts it, many on the left seem utterly unable to comprehend this judicial philosophy:
[C]ontrary to liberal characterizations – the Court’s conservatives are far from monolithic and instead hold very diverse views about various provisions of the Constitution and the Court’s proper role. [...]
Those differences within the Court’s right also arise in other cases that illustrate liberals’ profound misunderstanding of Justices Scalia and Thomas. Decisions such as Graham (juvenile life without parole) and Presley (open courts) illustrate that those two Justices do take a narrow, government-favoring view of certain provisions of the Constitution. But it is easy to overlook that their principled reading of other provisions regularly leads Scalia and Thomas to adopt the very most defendant-favoring positions on the Court. In previous Terms, Scalia and Thomas have been a part of the majority revolutionizing both sentencing and the right of confrontation, which favor criminal defendants. This Term, in Skilling, they would have invalidated the honest-services statute as unconstitutionally vague. In Comstock, they would have invalidated the civil commitment statute as beyond Congress’s powers. So too in civil cases, their strict fidelity to text can lead to “liberal” results. In Magwood (the case involving successive habeas applications), they joined Stevens, Breyer, and Sotomayor to form a five-Justice majority holding that the petitioner’s application was permitted. In Merck & Co. v. Reynolds, only Scalia and Thomas would have adopted the very most pro-plaintiff reading of the “discovery rule” for the statute of limitations in securities fraud actions.
Rather than a substantive critique of “hypocrisy,” liberals’ newfound love of “judicial restraint” is merely a talking point against a court majority unafraid to strike down laws which unconstitutionally restrict Americans’ liberties.