On the Volokh Conspiracy, Randy Barnett has written a long and thoughtful post that responds to my comments on George Will’s column. (I’m grateful for, and amply reciprocate, Barnett’s kind statements of regard.)
Barnett’s post helps to clarify the areas of agreement and disagreement between him and me. To make further progress to that same end, I offer some points in reply:
1. Barnett welcomes (or at least accepts) my distinction between judicial restraint (proper deference to a democratic enactment when originalism fails to generate a sufficiently clear answer that the enactment is unconstitutional) and judicial passivism (wrongful deference). He argues, though, that the version of judicial restraint that “used to be the dominant strain in conservative circles” rejected any such distinction, and he is skeptical that judicial restraint can be effectively “redefine[d]” to incorporate that distinction (and thus to be “compatible with originalism”).
I’m dubious of Barnett’s claim that what “used to be the dominant strain” of judicial restraint “in conservative circles” denied a distinction between judicial restraint and judicial passivism. I also think that such a distinction (however labeled) is obviously necessary. Anyone who denies the distinction would believe that the judiciary could never err by determining a democratic enactment to be constitutionally permissible. Who has ever taken that position? (No, not even Lino Graglia, who in any event was never representative of traditional thinking on judicial restraint.)
It seems to me that Barnett is transmuting his substantive disagreement with restraint-friendly theorists into a mistaken claim that they reject the existence of a category of judicial error that corresponds to what I label judicial passivism. Indeed, it’s telling that, to support his claim, Barnett offers this wildly tendentious assessment of Robert Bork:
Despite professing to be an originalist in his book, Bork was a majoritarian and moral nihilist (the two are related).
So in Barnett’s eyes, Judge Bork, whom most regard as the father of modern originalism, wasn’t an originalist at all. If by “majoritarian” Barnett means—as his argument would require—that Bork was an absolute majoritarian, then that label is clearly false. (To cite but one counterexample: Bork ruled in Ollman v. Evans that the First Amendment, understood on originalist terms, protected allegedly libelous statements.) As for “moral nihilist”! The author of Slouching Towards Gomorrah? The claim cannot be taken seriously.
2. In support of his claim that my position on originalism and judicial restraint is far removed from that of conservative predecessors, Barnett contends that my statement that judges should “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth,” is “exactly” the position of what Arthur Schlesinger Jr. (approvingly) labeled judicial activism.
That’s a remarkable claim, and it’s not at all accurate. Here’s how Schlesinger described the competing approaches:
The Black-Douglas [judicial-activist] group believes that the Supreme Court can play an active role in promoting the social welfare; the Frankfurter-Jackson [judicial-restraint] group advocates a policy of judicial self-restraint. One group is more concerned with the employment of the judicial power for their own conception of the social good; the other with expanding the range of allowable judgment for legislatures, even if it means upholding conclusions they privately condemn. One group regards the Court as an instrument to achieve desired social results; the second as an instrument to permit the other branches of government to achieve the results the people want for better or worse. In brief, the Black-Douglas wing appears to be more concerned with settling particular cases in accordance with their own social preconceptions; the Frankfurter-Jackson wing with preserving the judiciary in its established but limited place in the American system.
There is zero correspondence between my statement and the judicial-activist position that Schlesinger describes.
3. A minor note: Barnett imagines that my own “effort” to distinguish between judicial restraint and judicial passivism “is a reaction to [the great] disturbance created by the Court’s 2012 ruling in NFIB v. Sebelius” (the first Obamacare case). Not so. I’ve been using the term judicial passivism all along. (I recall having a reporter mistranscribe it as “judicial pacifism” at a June 2006 event of the State Bar of Texas.) Here, for example, is my explanation of the term when I introduced my “This Week in Liberal Judicial Activism” series back in January 2007.
4. On my observation that “I don’t understand what Will expects Republican presidential candidates to do with Barnett’s vocabulary”: Barnett contends that I am “reading Will’s piece uncharitably” and that Will “was not providing presidential candidates with a ‘vocabulary.’”
Well, here’s what Will wrote (emphasis added):
Republicans cannot speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged, by thinkers such as Randy Barnett, to adopt a vocabulary that is disconcerting to conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of “judicial restraint.”
5. On his reading of the Ninth Amendment, Barnett states that I have “not responded to [his] examination of the evidence” in his Texas Law Review article. In fact, I responded privately to him, via e-mail, way back in 2006 why I didn’t find his article persuasive. Neither did Michael McConnell, who, as I’ve noted before, has offered a very different account that squares with what the Ninth Amendment actually says.
6. It’s tempting to suspect that libertarians want to eliminate the label of judicial activism for the same reason that arsonists would be happy to have the word arson disappear: If arson were simply referred to as fire-building, it would lose the stigma that it has earned—and life would be much easier for arsonists. Similarly, if there is no term to distinguish between rightful and wrongful judicial invalidations of democratic enactments, then it’s much more difficult to condemn the wrongful invalidations.
Note that the libertarian advocates of judicial engagement not only offer no term for excessive judicial intrusion but also rarely find any ruling deserving of criticism for such excessive intrusion. Indeed, Barnett himself, raising Roe v. Wade, won’t even say that Roe was wrongly decided; he instead clarifies only that he is not affirmatively implying the opposite, “that Roe was correct on originalist grounds.” Gee, thanks.