While the vulgar left — Nan Aron, Ralph Neas, Ted Kennedy and his fellow Senate Democratic leaders — tries to demonize conservative judges as radical extremists, more sophisticated left-liberals employ a more subtle approach. They argue that conservative judges are activists in something like the way that liberal judges such as William Douglas and William Brennan were. The distinguished law professor Cass Sunstein made this case in Sunday’s Washington Post in a piece called “Role Reversal and the High Court.” For Sunstein the lesson is that “people will use power when they have it — and when a particular side controls the courts, the idea of judicial restraint will go out the window.”
The fallacy here is in defining judicial activism and restraint as willingness to vote, respectively, to overturn and uphold legislation. If one accepts this definitional framework, then the moral equivalency argument sounds plausible. But if one defines activism and restraint more sensibly, based on the way judges interpret the Constitution, the argument collapses.
The key distinction here is that conservative judges tend to determine what the Constitution does and doesn’t protect and prohibit based on a careful reading of what the Constitution says and how it originally was understood. Liberal judges tend to determine the meaning of the Constitution based on their policy preferences, and because those preferences often bear little relation to those of the Constitution’s drafters, they rely on whatever they can get their hands on. It may be true that conservative judges often vote in support of their policy preferences too. But, as conservatives, their policy preferences are likely to reflect the traditional preferences and values that the authors of the Constitution believed in and set forth in the document. The left-liberal impulse is very different, as Robert Bork has shown.
Thus, we see conservative judges tending to vindicate the Constitution’s easy-to-find preferences for protecting private property, promoting political speech, and eschewing racial discrimination, for example. And they do so based largely on the Constitution’s text. By contrast, we see liberal judges tending to vindicate “rights” like the right to an abortion, or to engage in sodomy, or to watch pornography. In doing so, they may look to alleged “penumbras formed by emanations” from the Constitution or to foreign law. Ultimately, as Judge Bork notes, they look inward to their own philosophical musings.
Do conservative judges demonstrate moral superiority by trying to abide by what an old document says, given that the document largely reflects their policy preferences? I don’t know, and I consider the question irrelevant. For me, the important point is that it’s difficult, and maybe impossible, to present a principled justification for giving courts the right to strike down legislation as unconstitutional unless judges are willing to abide by what the old document says. Policy preferences that aren’t rooted firmly in that document should be for legislatures, not courts, to impose.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill
“Proclaim Liberty throughout All the land unto All the Inhabitants Thereof.” Inscription on the Liberty Bell