Judicial Restraint Is For Suckers

When I was a conservative, naturally I would read many conservative critiques of liberalism, including especially liberalism’s alleged affection for the courts, to accomplish what liberals could not accomplish “democratically.”

The courts weren’t supposed to be used for anything other than interpreting the law and interpreting it in such a way so as not to “legislate from the bench,” went the typical conservative line.

My how things have changed.

In George Will’s recent column, he openly admits that conservatives don’t give a damn about judicial restraint, only conservative results. In one stunning piece, Will forever foreclosed any respectable conservative criticism of an “activist” court. We’re all activists now.

The column features right-winger Clint Bolick’s new book, “Two-Fer: Electing a President and a Supreme Court,” in which he points out the obvious: the executive’s prerogative to nominate federal judges has become “the grand prize in presidential elections.”

Well, liberals have always known that judicial appointments have a long-term significance, and if conservatives are just now learning it then it is too bad for the country.  But the thrust of Will’s piece is that it is okay—more than okay, it is necessary—for “conservative” justices to rectify “long-standing judicial mistakes” by overturning laws displeasing to, uh, conservatives.

I want you to absorb the following paragraph, which is crucial to understanding how conservatives really look at judicial restraint:

One hopes that 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 Web site) “leave the governance of the nation to elected representatives.”

No, no, no. We can’t let the people’s representatives do the governing, as that might leave us with, well, democracy. Will has made it clear that judicial restraint is for suckers, if Congress happens to pass laws that conservatives don’t like. He ends with this:

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.

Get that? “Judicial deference to elected representatives” is not the stance a proper conservative jurist should take these days, what with so many “long-standing judicial mistakes” to correct.

I recommend that all liberals and Democrats digest what Will is saying so we won’t have to tolerate any longer the bullshit about judicial restraint that used to be on the lips of every conservative.

Edmund Burke is dead, and so is his conservatism.



  1. Treeske

     /  June 19, 2012

    Governance by the elected representatives? We are governed by the Global Corporations, without transparency, Feudalism on the way!


  2. ansonburlingame

     /  June 20, 2012

    “Judicial restraint” now becomes the debate, right?

    No doubt that constitutionally, Congress legislates all laws, democratically through elected representatives. BUT, any laws so legislated MUST conform with the Constitution, the basic law of the land. Violate the Constitution and laws get removed from the books.

    Conservatives firmly believe and call for such “restraint” on Congress and the Executive Branches of government. The restraint imposed is only based on Constitutional interpretations made, ultimately by SCOTUS, regardless of current popular or poltical pressures. Was that not the exact intention of the Founders, to create a Judiciary that would limit what Congress and the Executive Branch to Constitutional dictates?

    Would it not be interesting right now to hear a SCOTUS case CHARGING the Executive Branch for failure to enforce the law of the land? How about illegal immigration where we have seemingly very clear laws for immigration and the process to achieve American citizenship, ultimately. Yet here we are with the Executive Branch FAILING to enforce current laws.

    Now why is that happening? Well the Executive Branch right now does not LIKE the current laws but has not changed them, democratically through representatives in Congress, So instead it, the Executive Branch through the Dept of Justice IGNORES the law. And when a State tries to enforce such laws they get sued by the Federal Government? Imagine that.

    As well when SCOTUS interprets the law against the “will of the President” they get publicly lectured by the President for their perceived failure in such interpretation of something as fundamental as “free speech”.

    For decades a “progressive SCOTUS” allowed very liberal interpretations of various laws that are strangling the country today, financially. Such courts even resorted to “penumbras” seemingly within the Constitution to allow such interpretations. For now the tide has turned to some degree as will probably be shown real soon in terms of ACA. But in this case, if the federal mandate is deemed unconstitutional, SCOTUS will as well reflect POPULAR opinion, almost overwhelming popular opinion now opposed (by 60% or so) to that new mandate.

    Want to see the cost of HC insurance stop rising or even drop? Then get rid of ACA. It may well stimulate creation of more jobs because employer provided HC insurance will not be such a new burden. But that leaves 30 million people without HC insurance claim progressives. Solution? “Get a job”! That will help the Food Stamps problem as well!

    Therein we see some long term dynamics of American political opinon. Americans said “Enough” for GOP politics in 2008 and voted for change, promises that later were unfulfilled by and large.

    The reaction was the election of 2010, an overwhelming rejection of Obama’s new political direction that ultimately piled more and more debt on our nation.

    Why did such a rejection occur in 2010? Progressives will claim MONEY drove the election results as well as GOP LIES. Now Duane throws in “cannibalism”, “squash’em like a cock roach”, etc. to try desperately to reverse the call from outraged Americans in 2010.

    Good luck. Such polemics blew up in the face of Unions in Wisconsin last month even from within the ranks of union members!



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