Serious, learned, and well-meaning — but out of control

Ann Althouse has the following to say about conservatives who complain that some judges are out of control:

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn’t be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish.

Glenn Reynolds agrees.
I think that Althouse has invoked a false dichotomy. Many activist judges are deeply thoughtful and well read in the law. However, their reading and thinking has led them to conclude that their role is far more expansive than the conservative view of judging holds. Specifically, they consider it far more appropriate, in the most important cases, to look beyond traditional sources of authority to their personal policy preferences and/or those of like minded individuals or institutions whose views traditionally would have been viewed as irrelevant. This isn’t surprising. Many on the law school faculties that helped train these judges held similar or even more activist views. Some on these faculties may well have believed that no other form of judging is even possible.
Consider Justice Ginsburg. I have no basis for thinking that she is other than thoughtful and erudite. However, she recently stated that U.S. courts should continue to look to foreign law and legal thinking for guidance in part because the way foreigners view America is influenced by what they think about our legal system. In other words, judges should look beyond the law and concern themselves with shaping America’s image abroad. Yet if one were to suggest to Ginsburg that the Supreme Court should worry about what Americans think of our legal system, Ginsburg or her admirers would probably consider the suggestion an attack on judicial independence.
From a conservative perspective, the opinions of judges like Ginsburg are serious and thoughtful, but they are based on improper considerations. In that sense, judges like Ginsburg are out of control. Does this mean that they are “frauds.” I don’t think so, although their opinions sometimes are deceptive. But it does mean that these judges are the political enemies of conservatives, and it also means that the quest to confirm judges who reject their activist approach is probably the most important domestic issue before the Senate.
HINDROCKET adds: That’s brilliantly put, Deacon, but I don’t think it goes quite far enough. Our disagreement with activist judges isn’t based only on the fact that they’re liberals and we’re conservatives. More important, it’s based on the fact that our Constitution didn’t establish the Supreme Court as a super-legislature, appointed for life, charged with nullifying popular opinion when it conflicts with more “sophisticated” sentiment. One can imagine a government so structured, but it isn’t ours, and it wouldn’t be a democracy. Those who try to turn the judiciary into a legislature–but an unaccountable one, that never has to stand for re-election–can hardly complain when electoral passions begin to swirl around judicial appointments.


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