In his decimation of Bush v. Gore -- decided 10 years ago next week -- Jeff Rosen said that there was a silver lining: "Conservatives have lectured us for more than 30 years about the activism of the Warren and Burger Courts. Those tinny and hypocritical lectures are now, thankfully, over." This was, alas, excessively optimistic. Conservatives have remained remarkably successful in selling the idea that they stand for "judicial restraint." They still maintain this even after a bare majority of conservative justices decided the 2000 election, struck down state and federal gun laws, ruled that school districts cannot voluntarily desegregate, struck down state and federal campaign-finance regulations, etc., etc. And now that they want the Supreme Court to strike down parts of the Affordable Care Act, the idea that conservatives oppose "judicial activism" is about to become even more farcical.
Via Jon Chait, George Will proposes a way out. Conservative rulings that strike down legislative acts such as the ACA, Will asserts, aren't "judicial activism" but "judicial engagement": "The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means." Will hopes that the Court will be "engaged" (wink, wink) when considering the ACA.
The obvious problem is that, as with all attempts to redefine "judicial activism" so that the charge only applies to other people, this distinction between "activism" and "engagement" is an empty tautology. Nobody believes that laws should be struck down based on rights that weren't placed in the Constitution. Nor does invoking originalism help. Originalism is not the only legitimate method of constitutional interpretation; it does very little to constrain judges; and in the rare cases in which originalism seems to prevent certain outcomes, conservative judges generally find ways around it anyway.
As Pam Karlan recently argued, "Let’s drop the vacuous accusations of activism and instead argue about the right answers to constitutional questions, and the real meaning of fidelity to the most important constitutional principles." Attempts to deny that conservatives practice "judicial activism" as they advocate striking down law after law are just embarrassing.
-- Scott Lemieux