Matt Franck’s essay on judicial activism rewards careful reading, and is the basis for fruitful further thoughts about the current state of liberal constitutionalism. Here is one of mine.
The Washington Post article Matt analyzes confirms, I think, my previous suggestion in these pages that conservatives are dictating the terms of the debate about judges. That liberals are pining for their own “Scalia” is one bit of confirming evidence. We see it on full display in Barack Obama’s very-odd view of judging, in which the good Justice does exactly what John Roberts does every day of the term save one — the day on which the good Justice decides the case according to Barack Obama’s values. The ascendancy of conservative terms is apparent, too, in the increasing resort of liberals (especially on the Court) to a dialectical argument against Scalia: they say that, notwithstanding his protests to the contrary, Scalia is really a judicial “activist” who resorts to favored political values to decide cases.
There are at least two problems with this move. One is that it is mistaken. As Matt well shows, Scalia does what he can to protect his judicial decisions form undue influence by his own moral convictions. The other problem is that the mini-nino strategy justifies nothing. Let’s say that Scalia really does rely upon critical morality where he says that he does not. That would be a valid criticism of Scalia (according to Scalia’s theory of judging), and thus a good reason for Scalia (again, by his own normative lights) to change his vote in the case. But what follows from this for liberals who make the criticism? They seem to think that calling Scalia an “activist” establishes that moralistic judging (to choose a compact description) is inevitable and thus justified. But it does no such thing. And there would still remain the delicate matter of showing — if we are all supposed to be “activists” now — that liberal moral values are sound, correct, or valid in a way that conservative values are not.
What Matt’s piece set in boldest relief, though, is that liberals lack a coherent and generally acceptable account of how to integrate critical morality with more straightforward legal reasoning. Liberals are sure that they favor more judicial reliance upon critical morality in constitutional cases than conservatives at least say they do. Liberals might even agree about the right result in most or even all cases. But liberals cannot agree upon a reflective account of how to get where they know they are going: they lack a satisfactory theory of constitutional interpretation. They know that unapologetic resort to clearly extra-constitutional values — Brennanism — won’t do anymore. And they see that Obama is applying this lesson in the least attractive manner possible: Brennanism redux, but only once in a great while, with no stable account of when, why, or how to pull off the occasional fit of activism.