Bench Memos

Ramesh: Conservative Judicial Activism

Ramesh, conservatives would certainly be guilty of “judicial activism” if they engaged in it.


But it’s just very rare (nowadays) for “conservatives” to do so –because they believe in fighting political battles in the proper (political) arena, win or lose.  If you can provide a real current example of “conservative judicial activism” — because the two you have provided do not qualify – I would readily agree that it is improper “conservative judicial activism.” 


The economic substantive due process at work in Lochner v. New York was “conservative judicial activism,” for example.  But Justice Thomas’s position on the Voting Rights Act does not qualify as “judicial activism” or as any betrayal of originalism, nor does the legal argument for Frank Ricci. 


The text of the 14th Amendment says “No person shall be denied equal protection of the laws.”


The text of the 15th Amendment gives Congress enforcement power against racial discrimination in voting, not enforcement power in the absence of racial discrimination.


And nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted.


It is never “activism” to faithfully interpret and apply the Constitution.  If you are truly evaluating the text and history and principles of the Constitution (which never contradict each other, but where evidence is scanty in one area, it may be more plentiful in another;  this is the opposite of inventing stuff out of thin air, applying one’s own personal views, or invoking some evolving, enlightened global moral consensus), it isn’t activism;  it’s the only correct way to apply the Constitution as an Article III judge.


I want to bend over backwards to say you are right that ”conservative judicial activism” is possible, and that it’s as bad a way for an Article III judge to behave as it is to engage in liberal judicial activism.  I just want to come up with a better example, because your examples are wrong.  And because any really good actual example is so elusive, it’s proof that conservatives do not, as you imply, engage in anything like the judicial activism that liberals do.  Just look at Ed Whelan’s posts on this blog under “This Day in Liberal Judicial Activism”:  could you, in a million years, construct a parallel continuing feature, ”This Day in Conservative Judicial Activism”?  OK, ”On this day in 1905, a majority of the Supreme Court held that freedom of contract prevented New York from regulating the working hours of bakers….”   


The material just isn’t there.  Your examples do not cut it for the reasons stated, but I am happy to validate your hypothetical thesis with a hypothetical case of conservative judicial activism or two:  


Let’s say that some hypothetical Supreme Court (because there is not even one vote for this position on the current Court) ruled that the Constitution prohibits any abortion at all, i.e. that the 5th and 14th Amendments affirmatively and absolutely protect the right to life of unborn human beings in this country from their moment of conception — i.e., the perfect judicial opposite of Roe v. Wade and Doe v. Bolton


Although this would be less of a constitutional and originalist stretch than were Roe and Doe themselves, and although some serious and scholarly people make this argument that the pro-life position is protected by the existing Constitution (I think, though I may be wrong, that this is the view of people such as Lew Lehrman and Doug Kmiec), I would understand if you said such an argument, or ruling, would represent “conservative judicial activism.”


Another example might be, if conservatives said, the Constitution (in its present form) enforces a regime of marriage limited to one man and one woman, and that if a state wants to legislate marriage among persons of the same sex, an unlimited number of persons of any sex, etc., states cannot do so.  I can see where one might label this “conservative judicial activism” — but, as we see, conservatives are not trying to do that, only to either (a) amend the Constitution properly, as the document itself provides, instead of illegitimately “amending” it by judicial fiat, or (b) fight the battle for traditional marriage in the legislatures, where absent a proper constitutional amendment it belongs.


That these are mere hypotheticals is the point:  conservatives just aren’t doing what liberals are doing in the judicial activism category.  And if there were ever a moment when this point needs to be conveyed to the great majority of Americans whose instincts on this are so much sounder than Larry Tribe’s, and Barack Obama’s, and Ruth Bader Ginsburg’s, and Sonia Sotomayor’s, it is now.  This is why your column was so heartbreaking.  


As one ”soccer mom” told me today, the arguments about the court seem like “inside baseball” to her fellow Americans (the ones who are going to sustain or allow the collapse of self-government):  “They just think it’s about liberal vs. conservative and whose ox is getting gored.  They don’t realize that this is about procedure and order and the rule of law, on the one hand, vs. chaos and power grabs on the other.”