Bench Memos

NRO’s home for judicial news and analysis.

Re: Off the Deep End


Like Matt, I find, er, curious George Will’s embrace of judicial activism.  Let me offer a few observations:


1.  Will asserts that the “small provincial spat” over dancing at a saloon in Pinal County, Arizona, “illustrates two large themes of our national history”:


First, democracy requires judicial supervision to thwart the excesses of elected officials. Second, governments closest to the people are — never mind what sentimentalists say — often the worst. This is because elected tyrants can most easily become entrenched where rival factions are few.


It’s far from obvious to me that these are “two large themes of our national history,” and I would have thought, say, that the role of the Dred Scott ruling in making the Civil War inevitable, the Lochner era of judicial invalidation of social and economic legislation, and the disruption of American politics that Roe v. Wade has caused for more than three decades might counsel some countervailing concerns about the merits of unbridled “judicial supervision”.  In any event, Will’s phrasing reflects no consideration of how “judicial supervision” can be reconciled with principles of representative democracy.  I certainly believe that it can be, but the reconciliation lies in rooting judicial power in a constrained, determinate theory of the role of judging (and, more particularly, I believe, in a combination of principles of original meaning and judicial restraint).  It does not lie in celebrating unhinged “judicial supervision”. 


Will may be right that “governments closest to the people are … often the worst,” but at least those oppressed by local “elected tyrants” have the option of moving to the next town.  No such easy option exists when the Supreme Court does the trampling.


2.  “Down in the legal weeds,” Will observes, the saloon owner may well be in the right under existing statutes.  If so, it should be enough that a court apply those statutes.  What a strange case on which to base a plea for judicial activism.


3.  I certainly don’t dispute (in general at least) Will’s “mighty oak of a principle:  There must be a judicial leash on governments to prevent them from arbitrarily asserting that the plain language of a statute means something that it plainly does not say.”  But Will immediately follows this respect for “plain language” with this paragraph:


The 14th Amendment’s guarantees of equal protection and due process of law should mean that government may interfere with a citizen’s economic liberty only to promote important government interests that cannot be advanced through less restrictive means. Under today’s weak “rational basis” standard, courts validate virtually any abridgement of economic liberty, no matter how tenuous the connection to even a minor public purpose. Conservatives, note well: Restoring economic liberty requires a kind of judicial activism — judges judging rather than merely ratifying government’s caprices.


I won’t exclude the theoretical possibility that there might be a way of gleaning from the language and history of the 14th Amendment the proposition that Will sets forth in the first sentence of that paragraph, but it would have been good for Will at least to outline an argument.  More to the point, his clarion cry to conservatives in the last sentence is manifestly wrong:  The political processes are fully capable of protecting economic liberty.  That doesn’t mean that they will always do so, nor of course will reasonable people always be in agreement on what counts as economic liberty.  But the prospect that the political processes might not always protect the interests Will deems to be economic liberty hardly provides a reason for conservatives to heed Will’s call for “a kind of judicial activism.”  Further, assessing which government interests are important and which means best promote those interests is the essence of policymaking; labeling it “judging” doesn’t make it so, not even with the benefit of italics.

Tags: Whelan


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