Conservative Judicial Activism? Don’t Believe It!

August 11, 2005

Would someone please tell Sen. Barbara Boxer that John Roberts is not running for political office — and get her a copy of the Constitution?

Sen. Boxer indignantly announced recently that she would vote against Roberts’ nomination to the Supreme Court unless she can be convinced that he will support abortion rights. This conjures the silly mental picture of Judge Roberts sitting in the hot seat, being grilled by the Senate Judiciary Committee, wearing a button saying, “Abortion is safe with me. Vote Roberts for U.S. Supreme Court Associate Justice.”

Since Boxer has, via the Peter Principle, managed to land herself in the United States Senate, wouldn’t it be refreshing if she would demonstrate some comprehension of the Court’s limited role under the Constitution?

But such outmoded ideas as “judicial restraint” apparently never occur to those of Boxer’s mentality, including most Democrat senators. They see the courts as their best vehicle to achieve and preserve many of their policy goals.

In their cynical formulation, there is no such thing really as a judge who would interpret rather than make laws; a judge’s fitness for the bench is primarily a function of what policies he supports, that is, his political philosophy rather than his judicial philosophy. To them, the phrases “strict constructionist,” “originalist” and “judicial restraint” are just euphemisms for “conservative judicial activism.”

According to them, on this issue, conservatives are transparent phonies who advocate a limited role for the courts to disguise their sinister intention of leading the nation back — in the words of Boxer — “to the days of back alley illegal abortions.” Conservative judges would make policy all right, but it would be conservative policy.

To illustrate, an e-mailer — obviously a graduate of the Boxer school on constitutional misinformation — told me, “You really want an originalist judge that will overturn existing precedent in favor of earlier understandings. In other words, you want a conservative activist.”

There you have it. A judge who “will overturn existing precedent in favor of earlier understandings” is a “conservative activist.” Thus, through semantic sleight of hand, moral equivalence is established between those who would sacrifice constitutional principle at the altar of the liberal policy agenda and those who insist on preserving the Constitution as the supreme law of the land.

Here’s my answer: “No I don’t want a conservative activist — a judge who will either twist the words of the Constitution or effectively add words to it for the purpose of implementing a conservative policy agenda. I don’t believe it is legally or morally acceptable for judges to legislate from the bench, even if they legislate conservative policy.”

An “originalist” Court would be no guarantee of a conservative policy shift. A reversal of Roe v. Wade, for example, wouldn’t necessarily lead to the wholesale illegality of abortion. But it would restore power to the states to decide an issue properly left to them, which would expand the people’s liberty (choice?) and sovereignty. (Even if the Neanderthal Southern states outlawed it, surely expectant mothers could travel north or northeast to find sanctuary.)

Advocates of “original intent,” more accurately called “original understanding,” generally believe the Constitution established the best governmental structure ever conceived by human beings. They believe the principles undergirding it and inhering in it are responsible for the creation and development of the freest and most prosperous nation in the history of the world. They believe the abandonment of those principles has led and will continue to lead to the coarsening and debasing of our culture and the erosion and eventual eradication of our liberties.

Further, they believe that the safest bet to preserve these transcendent constitutional principles is to take the document seriously — dead seriously. Judges should not make a mockery of its language by ascribing meaning to it that was never intended, no matter how much they may believe in the desirability of the extra-constitutional result they’re seeking to achieve.

The governmental powers and limitations the Framers incorporated in the Constitution came with a purpose — usually to safeguard the liberties of the people. To the extent you ignore its prescriptions, you jeopardize liberties.

As corny as this may sound, many constitution-loving conservatives support judicial restraint and “originalism” not because they want to see shifts toward conservative policy, though that will be an emphatically welcome byproduct, should it occur. They favor constitutionalist judges because they believe in the Constitution — not out of some misguided political idolatry, but because they believe in its principles and the freedoms those principles ensure.

If the political branches continue to allow the composition of the Court to tilt toward judicial activism, the implosion of our unique system of government is inevitable because judge-made law and constitutional revisionism is like building a house on a foundation of sand. Without diminishing the staggering importance of such issues as abortion, we’re talking here about the very preservation of the republic.