Judicial restraint is overrated

June 17, 2012


— Because judicial decisions have propelled American history, and because a long-standing judicial mistake needs to be rectified, the most compelling of the many reasons for electing Mitt Romney is that presidential elections shape two of the federal government’s three branches. Conservatives, however, cannot coherently make the case for Romney as a shaper of the judicial branch until they wean themselves, and perhaps him, from excessive respect for judicial “restraint” and condemnation of “activism.”

In eight years, Ronald Reagan appointed 49 percent of the federal judiciary; Bill Clinton appointed 43 percent. Clint Bolick says the power to nominate federal judges has become “the grand prize in presidential elections,” because presidents now choose appointees with special attention to judicial philosophy, and because human longevity has increased.

In his lapidary new book “Two-Fer: Electing a President and a Supreme Court,” Bolick, of the Hoover Institution at Stanford and the Goldwater Institute in Phoenix, notes that Reagan was especially systematic and successful in appointing judges who would not surprise him, and his successors have emulated him. Since Barack Obama appointed Elena Kagan to replace John Paul Stevens, whose liberalism surely surprised his appointer, Gerald Ford, the court’s liberals are all Democratic appointees, the conservatives all Republican appointees, and both cohorts frequently are cohesive in important cases.

The average tenure of justices has grown from eight years in the young Republic to 24.5 years today. There have been four presidencies since Reagan’s, but two of his Supreme Court appointees, Antonin Scalia and Anthony Kennedy, still serve. Of the dozen justices confirmed since 1972, only one, Ruth Bader Ginsburg, was 60 when appointed. If Clarence Thomas, who was 43 when nominated, continues to the same age as the justice he replaced (Thurgood Marshall, 83) he will serve 40 years, eclipsing the court record of 36 (William Douglas).

Since Thomas replaced Marshall 21 years ago, no appointee has altered the court’s balance: Four liberals replaced liberals and two conservatives replaced conservatives. Today, however, two conservatives (Scalia and Kennedy) and two liberals (Ginsburg and Stephen Breyer) are in their 70s. So if Obama wins he may be able to create a liberal majority; if Romney wins he may be able to secure a conservative majority for a generation.

And, Bolick hopes, a conservative majority might rectify the court’s still-reverberating mistake in the 1873 Slaughterhouse cases. It then took a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise. This led in the 1930s to the court formally declaring economic rights to be inferior to “fundamental” rights. This begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.  

One hopes Romney knows that on today’s court the leading advocate of judicial “restraint” is the liberal Breyer, who calls it “judicial modesty.” Contemporary liberalism regards government power equably, so the waxing of the state seems generally benign. Yet Romney promises to appoint “restrained” judges. If, however, the protection of liberty is the court’s principal purpose, it must not understand restraint as a dominant inclination to (in the language of Romney’s website) “leave the governance of the nation to elected representatives.”

Such as those elected representatives who imposed Obamacare’s individual mandate? Or those representatives who limited (with the McCain-Feingold law) the freedom of political speech of persons acting as individuals? Or those who limited (with the law Citizens United overturned) the speech rights of people associated in corporations?

“When courts fail to enforce the Constitution,” Bolick writes, “typically they say that the proper recourse is through democratic processes — which offers hollow comfort given that presumably it was democratic processes that created the constitutional violation in the first place.” As Madison warned: “Wherever the real power in a government lies, there is the danger of oppression,” and in this nation “the real power lies in the majority of the community.”

Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.

— George Will is a columnist for Washington Post Writers Group.    


just_another_bozo_on_this_bus 5 years, 10 months ago

Translation-- Republicans should use the SC to even more firmly establish the US as a Plutocratic Republic.

Orwell 5 years, 10 months ago

When principles and profits conflict, guess what wins? Will, the hired shill of the Haves, never saw a principle he couldn't abandon.

Raging hypocrite.

verity 5 years, 10 months ago

So maybe one answer is to limit the tenure on the Supreme Court.

Or appoint George Will. He knows exactly how they should rule---and he thinks that money equates free speech. I'm sure he had orgasms over the Citizens United decision.

jafs 5 years, 10 months ago

This whole judicial restraint vs. activism thing is just another way for people to say they like or dislike what the SC is doing.

It's striking, though, that a generally conservative writer is arguing against restraint.

just_another_bozo_on_this_bus 5 years, 10 months ago

"It's striking, though, that a generally conservative writer is arguing against restraint."

That's because the conservatives have a very thin majority on the court. If Obama manages to nominate and get confirmed a moderate (he won't nominate anybody truly liberal/progressive) or two which would shift the balance to a more moderate stance, Will will be railing about "judicial activism" again.

jhawkinsf 5 years, 10 months ago

Bozo, I wonder how you define moderate. I suspect your center line is more left than the average person. I see Sotomayor as being as far left as Scalia is right. I see Kagan as far left as Alito is right. Given Obama's history, and add in the fact that any future nomination will come after this election when he will never have to face voters again, I see no reason to believe future nominations will suddenly be of moderates. I think he will go for broke, with no political consequences and nominate the most liberal/progressive justice that he can. That, more than any other thing will define his presidency and his legacy.

chootspa 5 years, 10 months ago

You might want to get your lenses checked, because your vision is clearly tinted with Fox colored glasses.

“She’s very much a moderate in the mainstream of judges,” said Kevin Johnson, dean of the University of California at Davis School of Law.

I could keep giving you quotes, but I won't. Could an argument be made that she's slightly to the left of moderate? Possibly. But it's hyperbole in the extreme to claim she's the left equivalent of Scalia.

just_another_bozo_on_this_bus 5 years, 10 months ago

"I see Sotomayor as being as far left as Scalia is right. I see Kagan as far left as Alito is right. "

That's because you view things from a fairly rightwing/reactionary perspective. Kagan and Sotomayor are both nearly dead-center moderates, and whatever Obama's personal perspectives are, he'll nominate people he thinks can get confirmed, and that won't be anyone who is liberal/progressive.

jhawkinsf 5 years, 10 months ago

Yes, I'm certain Sotomayor and Kagan are dead center moderates. As are Scalia and Alito. That's why we keep getting all these 9-0 votes, reflecting the unanimous moderate perspective of the court.

jafs 5 years, 10 months ago

It's certainly possible that those two are moderates, and there are others who are conservative.

The only split possible isn't between extreme liberals and extreme conservatives.

just_another_bozo_on_this_bus 5 years, 10 months ago

There are no true liberals left on the court-- only moderates who occasionally lean center-left, extreme conservatives, and one conservative, Kennedy, who occasionally votes center-right.

jhawkinsf 5 years, 10 months ago

Bozo, that post only goes to highlight how far left you are. You said I was rightwing/reactionary. I'm pro-choice (most of the time), I'm 100% pro-gay rights, including the right to marry, I'm pro-tax increases to pay for our expenditures.
Do you really believe anyone with those ideas can be labeled rightwing/reactionary?
I do also have some right of center ideas. I'm generally pro-business. I'm generally pro-law and order.
I'm very pro-environment along with pro-investment in alternate and sustainable sources of energy.
Frankly, I'm all over the political spectrum. And from that perspective, I see things in a certain way. What about you? And I ask the question honestly and respectfully. But I certainly get the feeling that you are left of center on most, if not all, issues. Can you say which topics you might be right of center, as I outlines my left of center leanings. But if you can't, maybe it's a matter of your perspective that causes you to define the court as you do.

just_another_bozo_on_this_bus 5 years, 10 months ago

OK, I'll admit that you have a mixed bag of political leanings that, frankly, defy logic.

And, yes, I do tend to left of center on most issues (basically meaning that I rely on facts and logic for my political beliefs.)

Regardless, for any cognizant human being, it shouldn't matter what your political leanings are to know that the politics of Washington (as in the policies that emanate from there) tend to be center-right. That's true of Congress, the SC, and even this White House. It's fashionable among the radical right (which is pretty much everyone in the Republican Party establishment these days) to label anyone not on their bandwagon as communists and socialists. But just because those idiots like to throw around scary words they don't really understand doesn't make it so.

jhawkinsf 5 years, 10 months ago

Bozo, you accuse those on the right of so many things, but did you take the time to read your own post. Look at your second paragraph and what it says. It says that any person who believes anything on the right does not use facts, or those facts don't exist and you say they don't use logic. That's a heck of a bias to have. Don't you think that it's possible, just possible, that your own bias colors the way you look at things? Isn't it more probable that the reason you don't see even one member of the Supreme Court as being "left", you don't see any branch of government as being "left" because you are so far to the left and you carry that huge weight of your own bias that no one could ever be defined left enough in your biased thinking? Isn't that the real fact? Isn't that logical?

just_another_bozo_on_this_bus 5 years, 10 months ago

" It says that any person who believes anything on the right does not use facts,"

No, that's not what I said. But sadly, conservatism these days has come to require denying, ignoring and distorting facts inconvenient to ideology and/or satisfying powerful vested interests.

" you don't see any branch of government as being "left""

I didn't say that either. What I said was "the politics of Washington (as in the policies that emanate from there) tend to be center-right."

That doesn't mean that some agencies and departments don't occasionally do things that are center, or even center-left. But on balance, US government is clearly center-right, frequently drifting even further to the right than that.

And to bring this discussion back to SC justices, it's still a fact that there are NO truly liberal/progressive justices on the court (such as Brennan and Marshall not all that long ago.)

jhawkinsf 5 years, 10 months ago

Let me give you a hypothetical scenario. Suppose Scalia was the justice furthest to the right and I was somewhat to the right of him. And let's suppose Ginsburg was the furthest to the left and you were somewhat to the left of her. O.K.? Now whatever decisions the court made, I would be unhappy, all of them too far to the left for my liking. The same would be true for you only you think they are too far to the right. This would include 9-0 decisions as well as 5-4 decisions. Even the 9-0 decisions made in my favor could have gone further, in my opinion. And of course, 9-0 decisions going in your favor could have gone further. So I might say there are no true conservatives while you might say there are no true liberals. The problem with that line of thinking is that we each would be assuming that that movable center is where we are. It's not. The center is in the center.
Now back to reality. You're making the assumption that you represent the center and since no justice is to the left of you, they all must be conservatives. I see the center of today's court being Kennedy. He is far to the right of Ginsburg, far to the left of Scalia. And as for myself, I'm far to the left on some issues, far to the right on others and able to see that there are four leftists, four rightists, and one center/right justice. A slight shift to the right from some previous courts who were themselves slight shifts to the left from previous courts.

chootspa 5 years, 10 months ago

Ironically, they just announced a 5-4 decision in which Kagan, Scalia, Ginsburg, and Sotomayor were the dissenters. Were they total ideological opposites, I would imagine you've just seen the birth of a unicorn.

jhawkinsf 5 years, 10 months ago

Sometimes, the extreme right and the extreme left are closer to each other than they are to the center.
Rather than looking at it like a straight line, left to right, think of it like a near circle where the left and right nearly touch.

chootspa 5 years, 10 months ago

Sometimes our cognitive bias is so strong that we refuse to see the truth and concede that not everyone on the court is some sort of extremist.

chootspa 5 years, 10 months ago

It's only judicial activism when they disagree with you.

Cait McKnelly 5 years, 10 months ago

He is only arguing against "restraint" because it's what will keep Citizen's United from going down the toilet.

Cait McKnelly 5 years, 10 months ago

I saw the title and immediately knew the author.

verity 5 years, 10 months ago

As stated by others, it often depends on your own viewpoint whether you see someone as center/moderate or far-left/far right.

However, Supreme Court judges are, or at least I thought they were, supposed to be above politics and judge on the constitutionality of a case, which could result in a ruling contrary to what the judge believes. One shouldn't be able to tell from their judgments what political party they belong to (if any). Judicial precedence has always been very important and judges have been reluctant to go against matters that have been settled in the past.

One of the complaints about Citizens United has been that it is a ruling against precedence, so I think that by definition it can be called judicial activism. So, of course, Mr Will thinks that judicial restraint is overrated.

beatrice 5 years, 10 months ago

So you are familiar enough with the South African constitution to know without question that she is wrong?

Oh, but she is the buffoon, right?

verity 5 years, 10 months ago

I don't see how those figures, if true (unsourced), has any more relationship to the validity of their constitution than the fact that the U.S. has the highest incarceration rate in the world speaks to the validity of our constitution.

beatrice 5 years, 10 months ago

You know this? Really? Who told you, BAA?

Looks more like you (or somebody before you on some conservative website) know how to search Wikipedia: http://en.wikipedia.org/wiki/Crime_in_South_Africa

You conservatives really don't like citing your sources, do you?

And none of it matters. What matters is the Constitution in question. Of course, America's is better and the most relevant for today even though it was written more than 200 years ago and has been amended several times since, but it is best because, you know, its American! Geez.

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