Bench Memos

George Will’s Embrace of Judicial Activism

Matt Franck has previously discussed “the strange turn George F. Will has taken toward endorsing judicial activism—and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before.” Will’s Washington Post column today (which the editors fairly title “Judicial activism isn’t a bad thing”) provides, alas, another stark example.   

I’m not surprised that Will writes very favorably of Clark Neily’s book Terms of Engagement (which I criticized last fall in a series of posts: see parts 1, 2, 3, 4, 5, and 6). Will, after all, provided the blurb on the front cover of the book, and Neily’s general argument is consistent with Will’s “strange turn.” But I am surprised by how weak Will’s argument against judicial restraint is:

1. Will contends that “a perverse conservative populism panders to two dubious notions—that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.” Really? Who is expressing such notions?

I think, instead, that proponents of judicial restraint reject, as the younger George Will did (Dec. 18, 1994), the proposition that imperfections in the democratic processes mean that “majority rule is immoral and rule by an enlightened judiciary is obligatory,” and that they see the “zest for judicial decrees to supplement or even supplant legislative policy-making, and [a] corollary contempt for representative institutions,” as a mark of “contemporary American authoritarianism.” They reject the notion that Will now embraces—that America has a single “defining value” of “individual liberty” that judges should unconstrainedly pursue.

I think that proponents of judicial restraint recognize that there is an inherent “tension between judicial review—the invalidation of laws enacted by elected representatives—and popular government” (Will, Sept. 3, 2005), and that it is praiseworthy (“Admirable Judicial Restraint,” as Will’s column title of Feb. 2, 1992, put it) for a court to have “the courage to let [an] injustice stand rather than resort to judicial overreaching …., the courage to be judicial and self-denying rather than political and self-indulgent.”

I think that proponents of judicial restraint lament, as George Will once did (May 26, 1996), that “many Americans rather like courts sparing them the rigors of democratic responsibility for social policies,” and decry that “judicial imperialism” means that “democracy is so debilitated that Americans no longer seem to find [rule by judges] irksome.”

2. Will contends, “Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.” One could with at least as much merit respond: “Libertarians’ advocacy of judicial activism serves liberalism by leaving judicial power unrestrained.”

In any event, Will’s contention bears only on the question whether judicial restraint serves Will’s political goals, not whether it is jurisprudentially sound.

Most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).

3. Will asserts: “The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested.” Like Neily, Will somehow fails to apply that insight to those governmental actors known as judges, who have amply demonstrated their own “metabolic urge to enlarge [their] dominion.”

4. Will even recites with approval Neily’s silly statistical flim-flam on the percentage of laws and regulations that the courts strike down. As I’ve explained, Neily’s statistics

tell us nothing meaningful. They don’t tell us whether the Court was right or wrong in particular cases. They don’t tell us whether the Court should have struck down more or fewer laws (as there is no objective theoretical baseline for how often the Court should strike down laws). And they convey nothing about the magnitude and impact of any judicial errors.

Every time the Supreme Court wrongly invalidates a democratic enactment, it usurps and shrinks the realm of representative government. Further, some of those usurpations are far more significant than others. Take Roe v. Wade, for example. To reduce Roe to a simple statistical point in the calculus is to ignore how Roe has distorted and corrupted American politics for more than four decades—and how it has prevented the passage of countless laws. Ditto for the ongoing judicial assault on the fundamental institution of marriage and for numerous other instances of liberal judicial activism that, especially since the 1960s, have overridden the ability of American citizens to exercise their powers of self-governance on a broad range of issues.

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