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.    


Liberty_One 1 year, 10 months ago

It's funny how there always seems to be at least one comment on these pieces about how the commenter knew who wrote the article by the title. Congratulations, you're such a genius, please share more of your wisdom with us!


rockchalk1977 1 year, 10 months ago

SC Justice Ruth Buzzi Ginsburg visited Cairo recently where she suggested Egyptian revolutionaries not use the US Constitution as a model in the post-Arab Spring. "I would not look to the US Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done." What a monumental buffoon and, if I remember correctly, Bill Clinton appointee!


verity 1 year, 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.


Cait McKnelly 1 year, 10 months ago

I saw the title and immediately knew the author.


jafs 1 year, 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.


verity 1 year, 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.


Orwell 1 year, 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.


just_another_bozo_on_this_bus 1 year, 10 months ago

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


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