Bench Memos

George Will’s Epiphany

George Will is arguably the most prominent public intellectual on the right, and for over four decades the Pulitzer Prize-winner has provided erudite conservative commentary in his widely-syndicated newspaper column, in many books, and in journals such as National Review (for which he served as Washington editor from 1972 to 1978). Alas, in recent years Will has changed course from the strong-government Tory conservatism he exhibited in Statecraft as Soulcraft (1983), and now tacks libertarian. He has publicly acknowledged his atheism, favors legalization of drugs, left the Republican party, and even defended the U.S. Supreme Court’s recognition of a constitutional right to same-sex marriage in Obergefell.

In a recent essay in National Affairs, entitled “The Limits of Majority Rule,” Will goes further, announcing that he has had an epiphany regarding the proper role of the judiciary (and especially the Supreme Court) in our democratic system of government. In that essay, Will states:

For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated “judicial restraint.” For many years, I, too, was guilty of this. The reasons for that celebration of restraint include an understandable disapproval of some of the more freewheeling constitutional improvisations of the Warren Court, and the reasonable belief that the law schools that train future judges, and the law reviews that influence current judges, are, on balance, not balanced — that they give short shrift to conservatism. It is, however, high time for conservatives to rethink what they should believe about the role of courts in the American regime.

Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. Conservatives are hardly immune to the temptation to pander — to preach that majorities are presumptively virtuous and that the things legislatures do are necessarily right because they reflect the will of the majority. (Emphasis added.)

Will is somewhat coy regarding the extent of his epiphany: Does he embrace “judicial engagement” across the board, as advocated by Georgetown law professor Randy Barnett and Institute for Justice litigator Clark Neily, or is his argument for a more aggressive judicial role limited to the protection of economic liberties? Will’s essay is strangely unclear on this important question, as I point out in a post today on the Library of Law & Liberty, entitled “George Will’s Constitution.” I conclude that “Will does little to resolve the tension between the emerging libertarian model of constitutional theory and the traditional conservative approach he purports to disavow. Not all on the Right agree with the post-1937 marginalization of economic liberties, and many conservative legal scholars are open to arguments . . . in favor of economic liberties provided that they are supported by constitutional text and consistent with originalist principles. Rather than plowing new ground, George Will succeeds only in knocking down a straw man.”

If Will’s embrace of “judicial engagement” extends beyond the protection of economic liberties, does he support the holdings in Roe v. Wade (1973), Whole Woman’s Health v. Hellerstedt (2016), and the Warren Court agenda in general? If so, Will’s epiphany amounts to apostasy.

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