Bench Memos

NRO’s home for judicial news and analysis.

Will and Judgment


I don’t really want Bench Memos to become “,” but today his column in the Washington Post hits a new nadir for clear thinking about the federal judiciary.  Will begins by talking about Chief Justice Roberts’ “short and persuasive plea,” in his most recent year-end report on the judiciary, for higher salaries for federal judges.  Well, Roberts’ plea in his latest report was short, all right, but it was no more persuasive than his much longer and deeply flawed argument on the same score a year earlier.  The chief justice certainly does not show, as Will appears to believe, that “we are not paying enough to acquire judicial competence commensurate with the importance of courts in our system.”  (I have commented repeatedly on this matter; to hit only the high spots, start here first, then go here second, third, and fourth.)

Having relied on Roberts’ bad argument for higher judicial pay, Will then adds another argument all his own.  He observes an “enlargement of the judiciary’s role by the regulatory state,” blames the creation of the modern regulatory state on the fact that the ”federal government slipped the leash of constitutional limits on its scope of action” during the New Deal, blames the slipping of that leash in the 1930s on the fact that the Supreme Court “put aside the idea that the Constitution created a federal government of limited, because enumerated, powers,” and concludes that conservatives realistically “must come to terms” with the fact that the ever-busier judges must now be paid more.  “You get the quality–and the perspective–you pay for.”

This is incoherent on several levels.  Will appears to regret the fact that the Supreme Court gave up its four-decade career of conservative judicial activism in 1937, when it stopped trying to instruct the Congress in the uses of the commerce power.  In essence, then, he blames that restoration of judicial restraint seventy years ago for the subsequent re-emergence of judicial activism under the aegis of the modern regulatory state. 

Inasmuch as we are stuck with such judicial activism now, it seems, Will believes we should pay the judiciary more generously in the hopes of . . . what?  Getting more favorable results?  If we get the “quality” and the “perspective” we pay for, what quality and what perspective does George Will hope to find in the legal labor market?

Perhaps he believes that if judges are paid more, then well-heeled conservatives inclined to agree with George Will about the desirability of right-wing judicial activism will be willing to take seats on the bench.  Does Will think our problem is that only liberal judicial activists will work cheaply, and that conservative activists will cost us more?

I take it back.  There is an inner coherence to Will’s argument after all, and it is this:  We are all activists now.  The Constitution is permanently in the hands of the judiciary.  Conservatives had better up the ante of judicial salaries in order to purchase the kinds of judicial activists we want, to outnumber the kind the left has been buying so cheaply.

I finally understand George Will.  He is a firm believer in the living Constitution–conservative edition.


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