Is there such a thing as too much judicial restraint?
July 6th, 2009 by Rightwing Czar at 9:58 amJames Taranto at the WSJ has a piece running today arguing that the Roberts Court might be excersizing a little too much judicial restraint. It’s unlikely that any clear-thinking conservative has ever thought the phrase “too much judicial restraint” would be applicable, but Taranto makes some interesting points:
With a liberal Democrat in the White House, the court’s current balance is almost certain to survive the retirement of Justice David Souter — or, for that matter, the replacement of the oldest justices, John Paul Stevens, 89, and Ruth Bader Ginsburg, 76. But if President Obama wins a second term, by the time he leaves office Justices Scalia and Kennedy will both be 80 — the age at which Chief Justice William Rehnquist died.
By declining to resolve major constitutional questions now, the justices leave open the possibility that a future majority, more liberal and less scrupulous about constraining its power, will decide them. Such is the hazard of judicial restraint.
At issue here is the Court’s recent moves to decide case on very narrow grounds, thus leaving the bigger questions to be answered down the road.
For instance, the recent Ricci case overturned the appellate court decision based on a statutory claim about the Civil Rights Act – the ruling ignores any constitutional questions that might be raised by reverse discrimination. Another example Taranto points to is the case involving pre-clearance laws in a Texas district, where the court ruled that the particular act in question does not violate pre-clearance laws, but ignored whether or not pre-clearance laws are even constitutional.
The problem with this is that we’re essentially kicking hot issues down the curb – which means giving a later court the opportunity to decide what the answers will be. Right now we have a 5-4 majority on the issues where conservatives and liberals disagree – at least, we do most of the time. Sotoymayor replacing Souter won’t be a big deal, and Taranto points out that the next justices in line to step down will likely all be liberal: Ginsburg, Stevens, and Breyer.
But all three of those justices could theoretically leave in Obama’s first term, and both Kennedy and Scalia will be 80 by the end of his potential second term. That means that Obama might have the chance to appoint six very fresh faces to the court – giving liberals the opportunity to rule the law for a long time uninterrupted.
So maybe Taranto has a point here. If we continue to sidestep the bigger issues in favor of narrow opinions, we’re setting ourselves up for an Obama-stacked court to start handing down radical rulings – reshaping the culture of our country in the same way Roe did. But we’re conservatives, right? We object to the type of judicial activism that Taranto is asking for!
Well, no, actually. As conservatives, we should object to judges attempting to “legislate from the bench” – but that kind of activism is a whole lot different than doing what a judge is supposed to do, which is decide the constitutionality of what congress does. It’s one thing for a judge to bend the law or apply broad interpretations to very specific lines of text in our constitution in order to satisfy some sort of “empathy” requirement in their ruling. It’s a whole different thing for a judge to strike down acts of congress which step over the line.
Keeping congress in check, especially in a day and age where our legislative branch seems to have forgotten exactly what its duties are, is a necessity to our separation of powers. If the Supreme Court doesn’t do it now when we have a conservative tilt, you know they will when the powers swing back to the left.
And that is something we can’t let happen.