William Stuntz argues that conservatives “have the wrong judicial philosophy” and that they tend to have too grand a view of the proper scope of judicial power. I think these are (or can be) defensible claims, as are some of Stuntz’s subclaims. He argues, for example, that conservatives ignore the extent to which the judicial enforcement of federalism amounts to an assumption of power by the federal judiciary. I would add that it is hard to see the “federalist revolution” as anything but an assumption of power by the federal judiciary when that revolution does not extend to protecting states and localities from the federal judiciary itself.
But I suspect that the flaws in Stuntz’s essay will keep many conservatives from appreciating what may be worthwhile in it. He repeats hoary old arguments against originalism. Conservatives generally reject those arguments, and know why they do. Thoughtful originalists do not believe that judging amounts to a guessing game about what James Madison would believe about the issues of today or even the principles that underlie those issues–that’s Stuntz’s caricature of the philosophy.
His argument that federalism requires no protection from the Supreme Court, meanwhile, is a version of the old claim that the political process protects federalism just fine. His evidence that it does: State and local governments have been growing faster than the federal government for years. This will be cold comfort for conservatives who do not understand federalism in terms of the interests of state governments.
Stuntz then takes a realist turn, arguing that judges will always impose their preferred policies and the thing to do is to get them to impose the right ones. The right policies, he suggests, are those that defer to the voters and elected governments: “There are many ways a society could decide whether or not gays can marry, doctors can perform third-trimester abortions, universities can admit blacks and Latinos because of their ethnicity, or cops can frisk suspects based on a hunch. Judges writing jargon-filled opinions is rarely the best decisionmaking process. Antonin Scalia and Clarence Thomas, the two conservative heroes on the current Court, are no more likely to get the right answers than I am.”
But hold on. On three of those four questions, the “answer” Scalia and Thomas are inclined to give is precisely that voters and their representatives should decide the issue. Nobody has credibly argued that either justice would outlaw abortion, block states from recognizing same-sex marriage, or overturn state laws that restrict police procedure. These justices are already largely where Stuntz says they should be. And they got there by adhering to the originalism that Stuntz rejects.
The essay’s a mess.