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July 11, 2005

The Myth Of Conservative Judicial Activism

Yesterday I got an email from my Dad. The subject line read, "Michael Kinsley stumbles onto the truth...".

I had to laugh. Tacked up behind my monitor was another of his editorials in which he'd had an Epic Encounter with Reality. Mr. Kinsley was dutifully flailing away at the liberal Boogeyman Du Jour: conservative judicial activism. Reading his piece several weeks ago, I'd had exactly the same thought - "One of these days the man is going to hurt himself".

Conservative judicial activism - this one never fails to mystify me. By what definition is it "dangerously radical" to interpret the Constitution as originally written? How is it activist to resist reading things into a document which clearly are not there, or to wish the Supreme Court would stay within the bounds set for it by the Constitution? That would seem more passivism than activism, at least to my way of thinking.

Typically, Kinsley manages to twist the definition of "activism" around until he has it exactly backwards. After a series of rhetorical twists and turns that leave the reader dizzy and confused, he heaves an enormous sigh of relief:

...the danger of conservative judicial activism has been averted for another year. Stay tuned.

Yes, those working-class folks may have lost their homes, but I'm sure they feel comforted by the thought that those horrid activist judges have been forcibly restrained from narrowly defining the Public Use Clause. But though Kinsley got almost everything else wrong, the truth he stumbled onto was a stunner. Or it would have been, had he only realized it:

Of course, conservatives always claim to be against judicial activism. Liberals have long suspected that this was a decoy and that once conservatives had control of the federal courts they would twist their mustaches, laugh contemptuously and reveal the various policies they planned to impose by judicial fiat. Conservatives and liberals alike have been waiting for this moment for a third of a century. Each Supreme Court appointment by a Republican president seems to be "it." And yet "it" hasn't happened. Roe v. Wade -- the high-water mark of liberal judicial activism -- still stands. And on Thursday the court said a surprising "no thanks" to judicial activism, Republican style.

Kinsley's unwitting admission was even more remarkable when you consider that 7 of the 9 sitting Justices were appointed by Republicans. Did it never occur to him that perhaps all the Democratic hysteria might be misplaced? After all, he admits that though the court has been controlled by conservative appointees for quite some time, the nightmare of conservative judicial activism has not come to pass. Nor is it likely to - for good reason. For unlike Nancy Pelosi, who greets the prospect of a Divine SCOTUS as the beginning of an Age of Marvels, conservatives most definitely do not feel that the Court's pronouncements are "almost as if God has spoken". Why is it that the party that complains about disenfranchisement and the importance of representative goverment seems so eager to cede power from the legislative to the judicial branch?

This has long puzzled me. I have never understood why Democrats resist Federalism. Likewise, it has always mystified me how otherwise intelligent people define originalism as "radical" when it is such a minimal approach. The answer, I have come to believe, lies in whether one believes the end justifies the means. Whether one believes in rule- or process-based government, or that it is more important to achieve a given end quickly, with a minimum of fuss; even if in so doing one stretches established law and procedures to the breaking point.

The former approach implies a fundamental mistrust of human nature and a reliance on the accumulated wisdom of prior generations. It assumes rules generally exist for a reason (i.e., in the past, something bad probably happened, causing someone to learn from experience and create procedures to handle future occurrences). The latter approach assumes that somehow human nature is perfectible: past mistakes will not be repeated and people will always behave responsibly, regardless of incentives or disincentives. This is an assumption history has not borne out.

Nowhere was the tension between these two philosophies more clearly evident than in the often-conflicting rulings of recently retired Justice Sandra Day O'Connor. Conservatives often struggled to understand why she ruled one way on this case and another on that. Charles Krauthammer pins it down neatly. Unlike Antonin Scalia or Ruth Bader Ginsburg, philosophical opposites united by the use of a strong and consistent judicial philosophy, Justice O'Connor seemed more interested in achieving social ends than in carrying out her appointed role as an interpreter of the Constitution:

Perhaps the most telling moment of Sandra Day O'Connor's nearly quarter-century career on the Supreme Court came on her last day. In her opinion on the Kentucky Ten Commandments case, O'Connor wrote that, given religious strife raging around the world and America's success in resolving religious differences, why would we "renegotiate the boundaries between church and state. . . . Why would we trade a system that has served us so well for one that has served others so poorly?"

This is O'Connorism in its purest essence. She had not so much a judicial philosophy as a social philosophy. Unlike a principled conservative such as Antonin Scalia, or a principled liberal such as Ruth Bader Ginsburg, O'Connor had no stable ideas about constitutional interpretation. Her idea of jurisprudence was to decide whether legislation produced social "systems" that either worked or did not.

Liberals applaud O'Connor as a pragmatist and a moderate, but in reality her judicial philosophy was anything but moderate: it was not only radical but inherently destabilizing:

The problem with ad hoc pragmatism, however, is that it turns the Supreme Court not only into a super-legislature but also into a continuously sitting one. Does anyone have any idea exactly how many reindeer are required to make a town's Christmas creche display constitutionally kosher? Or exactly how much weight you are allowed to give racial preference in hiring? The only way to know is to sue and go back once again to the Supreme Court.

It was also fundamentally undemocratic, resulting in a Supreme Court that has begun slaying gnats with a rolled-up Constitution. Can anything be sillier than the recent split Ten Commandments decisions? It is hard to believe the Founding Fathers intended SCOTUS to weigh how many cubic feet of fresh air suffice to diffuse the oppressive miasma of the Decalogue.

But erasing both our history and every vestige of the religion which has formed such a large part of American life seems to be a vital goal for the liberal left. The reason for this becomes obvious when one considers their goal, like that of Justice O'Connor, is defined as 'social stability': the maintenance of recent, post-FDR social engineering largely enacted through an increasingly activist (and increasingly liberal) Supreme Court.

Robert Bork comments on the changes time and activism have wrought:

What do the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think.

In Federalist No. 2, John Jay wrote of America that "providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs." Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

Alexis de Tocqueville observed that "if each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . Without common ideas there is no common action, and without common action men still exist, but a social body does not."

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted " 'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "at the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution, and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.

There is a great tension in America between our inherent desire for freedom of individual action, between what we as free beings see as our natural rights, and the respect for law and our civic duties. To someone born and raised in a military family part of this seems quite strange. The notion of duty seems as natural to me as breathing in and out. I cannot avoid it, nor would I want to. To me, freedom and duty go hand in hand: I enjoy freedom precisely because I belong to a greater entity:

The polis: a Greek city-state; broadly : a state or society especially when characterized by a sense of community.

As an individual, I am suspicious of government and generally annoyed by nosy officials and intrusive rules. On the other hand, as an adult I have learned that without rules and police and consequences, people invariably behave badly. Without rules, without police, we have anarchy: the rule of the strong over the weak or the tyranny of the many over the few. Thus we put up with the inconvenience of government - because it guarantees our freedoms.

But government is becoming so large, so remote and unwieldy that it no longer responds to the ordinary citizen. And this is largely a consequence of the encroachment of the federal government on areas that were once solely the province of state and local government. And this has happened because we have been seduced by the siren song of individual freedom: instead of working through our state and local governments to ensure they represent us fairly, we have taken the quick and easy path. Impatient of the often-lengthy democratic process, we increasingly resort to the federal courts to achieve quick results. The result has been an end run around our federal, state, and local legislatures. But more importantly, we have enlarged the role of the judicial branch at the expense of the legislative and executive branches. Worse, each successive decision has broadened the precedent for SCOTUS to liberally interpret the Constitution and further undermined the original structure and meaning of that document.

We have, in essence, created a monster. As Justice Scalia memorably quipped, this is not the way it was supposed to be:

The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law.

More recently, Justice Thomas lamented the death of Federalism in Gonzalez v. Raich:

“One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

He was right: how is the ordinary citizen to effect change in a legal landscape where state law has become federal law and the role of Congress is increasingly being usurped by the Courts?

I read something which stunned me yesterday morning. Unfortunately it is subscription-only, so I will have to sum it up. The article argued that the precursor to Roe v. Wade, a decision called Griswold v. CT, was wrongly decided. As someone who does not want the federal (or state, for that matter) government peering through my bedroom window, I immediately bristled: "What nonsense! Of course married people have a right to buy contraceptives!".

But then I started to think, before I even read the rest of the piece, and I began to realize there was a point to be made for this argument, and it tied in with something I had been thinking for a long time. I had fallen into the same trap I accuse others of: I went for the quick and easy solution.

Because that right did not arise in the Constitution. Now arguably, there is a right not to have my house unreasonably searched, nor my contraceptives seized, that arises in the Constitution. So perhaps there is an enforcement protection I can assert against the State when they come after me. But how many times do we, in trying to engineer ends to suit some predetermined outcome, do an end run around the system? And in so doing, do violence to the law?

This was a case that never, arguably, should have ended up in federal court. There was no federal question. And had there been no ruling in Griswold, there would have been no penumbral "right to privacy', and many a slippery slope would have been avoided.

But, you say, what about "the right outcome"?

We live in a democratic Republic. This case was tried in the 1960's, public opinion was changing rapidly. There should have been a public outcry, there ought to have been public debate. There are a million things that should have happened, here. But instead the matter was lifted out of the public arena and decided by the courts. And there was clearly NOTHING in the Constitution that said there was a federal right to privacy. The result was that a powerful precedent was created in which many matters have been removed from the hands of state and local legislatures and decided by a tiny number of non-elected people who are not accountable to the general populace.

If this is not activism, I don't know what is. And the truly interesting thing about all of this is that it requires a truly stunning refusal to confront our own history and legal traditions to pretend otherwise. For one cannot substitute the most recent fifty years of social progress for our entire 200+ year history without losing something irreplacible in the process: a priceless sense of perspective.

Posted by Cassandra at July 11, 2005 05:19 AM

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This is nice stuff, but the conservative who criticizes Griswold still has to answer one question for me. What does the 9th Amendment mean?

Madison evidently saw it is more "process" than substance, but its wording certainly sounds of substance. But if it means nothing more than the power of the Feds is set out in positive terms, and no implication from silence can be construed as a grant of power, then it makes little sense to me.

But it can't mean anything you want it to, either, as leftist Judges have argued since Giswold.

And so, as to Griswold, I think a conservative argument can be made for it. Marriage is one of those long, common law traditions that gets extra protection and privacy, and thus the idea that procreation within marriage is a state issue could easily be seen as violating rights reserved to the people.

I see the other point of view, but not every limit of government power is a liberal construct. Griswold is, as I see it, a far cry from Roe v. Wade or Lawrence v. Texas (as that case applies outside of marriage). But I admit that it was the pandora's box that gave us those lines of decisions (Lawrence had other issues, including one O'Conner picked up on, dealing with equal protection, that might make it correct, but not for the reasons Kennedy argued).

Posted by: KJ at July 11, 2005 10:28 AM

Well I'm still thinking about this KJ, but I have to admit that this was a total thunderbolt to me.

I have honestly not really considered before that Griswold may have been wrongly decided.

Admittedly during my ConLaw class (which I did not attend, as I was working 40 hours a week and was overloaded in my Computer Science classes) I was doing all the reading but was not really as plugged in as I might have been otherwise.

I wrote about Roe and Griswold for much of the final and got a 97, concluding that Griswold was right, the right to privacy was troubling but I couldn't argue with the result (a conclusion that I now question). In fact, much of what I then wrote, and was very happy with, I now question. I really want to go back and re-read the text along with two other ConLaw books I picked up, as some of my thought is changing and I want to re-examine some of my premises in light of the relevant opinions.

Posted by: Cassandra at July 11, 2005 10:35 AM

the right to privacy was troubling but I couldn't argue with the result

And ironically I questioned this premise AT THE TIME as philosophically somewhat shaky. So why didn't I look at it more closely? I can't say.

It bothers me.

It was a somewhat sarcastic essay - one of the more amusing things I've written, actually. I shot off a couple of very funny one-liners. Probably the only reason I got a good grade.

Posted by: Cassandra at July 11, 2005 10:39 AM


Posted by: CindyLouWho at July 11, 2005 12:10 PM

KJ, did you give up without a fight already?

Posted by: Cassandra at July 11, 2005 05:43 PM

Give up without a fight? Were we debating something?

I'm looking at your response, and I see a story about how you joked your way to a good grade in a class you never attended because you took the good and liberal privacy rights approach, and I'm assuming a few other things I read between the lines. Then you didn't go to law school but for some reason you still think you should be allowed to discuss legal issues even though the 33rd amendment clearly says you can't practice law without a license or an ACLU membership card.

Plus, as an unknown member of the Pre-Lochner Society or whatever group I secretly joined, I think Giswold v. State was wrongfully decided. The guy's brother-in-law kidnapped his boss. I don't care if he gave a lousy Christmas ham for a bonus. Kidnapping and eating kittens are just wrong.

What did I miss? :-P

Posted by: KJ at July 11, 2005 09:37 PM

KJ hon, did your life just flash in front of your eyes?

I hope so... *do* take time to say goodbye... :)

Posted by: Cassandra at July 11, 2005 09:41 PM

but the conservative who criticizes Griswold still has to answer one question for me. What does the 9th Amendment mean?

Posted by: Cassandra at July 11, 2005 09:42 PM

And who the helk is Giswold???

Posted by: Cassandra at July 11, 2005 09:43 PM

Why are we discussing anything Michael Kinsley, "the man with the intellect of Boo Radley", has to say on anything?

Like most modern Supreme Court decisions, Griswold was a piece of crap. It was only dwarfed by the even more intellectually vapid and logically unsound decision of Roe v. Wade. At least that was back in the days when the Court had SOME measure of shame and actually tried to pretend that they were following the law/constitution, rather than the brazen way they desecrate it nowadays.

Penumbras and emanations are what happens when I eat too much chili, NOT a basis for creating brand new constitutional "rights".

Posted by: a former european at July 12, 2005 07:47 AM


Griswold v. CT. You know, the subject of the last part of your essay.


Do you think that Griswold is entirely wrong, or just as it pertains outside the marital relationship. In other words, would it be right if it was limited to the idea that a married couple cannot be denied, by the state, safe FDA approved contraceptives, given the state of marriage as a private and protected status throughout the common law, a standard I believe even Scalia recognizes, would it be OK?

Because that is how Griswold started, and then plaintiffs were added that weren't married. The opinion could have been limited to married people, though the Court didn't do that. I think, in that context (the married context) it is a correct result. Just like I think a sodomy law that applied to married people would have to be struck down.

It gets more activist when you step outside the marriage context though. There is little common law heritage to fall back on.

Posted by: Lonely Man at July 12, 2005 10:10 AM

Wow. I can fake sounding like a lawyer. A lonely lawyer, but a lawyer. Maybe I should use that as a pick up line from now on.

Posted by: Lonely Man at July 12, 2005 02:44 PM

Lonely: We could argue such distinctions if you like, but nowadays we would first have to define the concept of "marriage" given recent court rulings. Liberals are truly Orwellian in their desire to pervert the basic concept of language and corrupt commonly held meanings and definitions.

Posted by: a former european at July 13, 2005 02:43 AM


I think you reaching. For common law/history purposes and a conservative justice, there is no debate about a marriage.

Posted by: KJ at July 13, 2005 11:58 AM

KJ: I agree completely. I was referring to our currently liberal-infested judiciary, not my own views.

Posted by: a former european at July 14, 2005 12:05 AM

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