Skip to content

Judicial Restraint and Activism: One and the Same

2012 June 30
by Randy H. Milgrom

“It’s a great pleasure, in this week when the entire political world is hanging on the Supreme Court’s health care ruling, to welcome so many liberals to a cause dear to my heart: The crusade for judicial restraint.”

So begins a recent column by The New York Times conservative columnist Ross Douthat, whose normally temperate manner is replaced in this case with sarcasm — not to mention uninformed judicial analysis.

Douthat’s not a lawyer, so his lack of depth on this subject is understandable. The man clearly cares deeply about this issue, so even his semi-vitriol is excusable. Passion is pardonable. But what can never be pardoned is duplicity.

Douthat’s theory is that judicial deference originally was the province of social conservatives and right-wing populists, and that this “changed gradually [only] as the influence of Republican appointees inevitably tilted the court rightward.” Now, as the “Obamacare” decision looms, Douthat says that “liberals [believe] … the Court has become a purely ideological actor, a rogue body unmoored from any cause save partisanship….” He tries to debunk any such concerns with statistics about the relative number of precedents invalidated and the average number of laws overturned under the Warren, Rehnquist, and Roberts courts, but while the numbers are relatively similar, what is vastly different are the types of laws and precedents that are being cast aside — and that’s the only difference that really matters.

So it’s not a matter of “liberalism’s conversion to the cause of judicial restraint,” as Douthat sarcastically suggests. And there’s still no real consensus “that judicial modesty is one of the best possible qualifications for a position that offers so much untrammeled power and brings so much temptation along with it.” Because what still matters most, to either side of the political spectrum, is what that justice is being “modest” about it.

As for what appears to be Douthat’s primary point that liberals want more “judicial restraint” only because cases might now be going against them: no kidding. The very idea that there ever has been any truth to whether any particular justice is likely to be a “strict constructionist” or someone who “legislates from the bench” always has been — and always will be — a distinction without a difference. It’s always been nothing more than a convenient canard for either side to hide behind to avoid having to say, “I want someone who will strike down all the things I don’t like and allow to stand those I do.”

No comments yet

Leave a Reply

You must be logged in to post a comment.