James Leroy Wilson's blog

Monday, July 02, 2007

The Myth of Conservative Judges

Vache Folle got me thinking about judicial activism. It occurs to me that no matter how a Supreme Court Justice behaves, he will be accused of being a judicial activist. In any case, it is virtually impossible to be a "conservative" Supreme Court Justice.

It is judicial activism to strike down the will of the legislature without clear textual evidence from the Constitution, but it is also judicial activism to overturn precedent. If, a long time ago, a liberal Court struck down a duly-enacted law in a decision short on Constitutional reasoning but long on sociology and social policy, that ruling should be overturned. But is it "conservative" to overturn a precedent? No; the very nature of conservatism is to build upon precedents, or sometimes to modify them over a period of time, but not to overturn them.

In the end, the very concept of judicial review - the power of the Supreme Court to declare a federal or state law unconstitutional - lets the activist cat out of the bag, leaving federal judges free to scratch and tear up laws or the Constitution whenever it pleases them. The doctrine of judicial review itself isn't even found in the Constitution.

But even a Justice who doesn't believe in judicial review and always defers to the legislature wouldn't really be a "conservative;" in today's climate he would actually be the most radical of them all.

This goes back to different conceptions of conservatism. One is moderate and works within the current political climate; the other is reactionary and insists on a strict interpretation of the Constitution even if it means abolishing the Fed and getting rid of the New Deal. The reactionary position may be the correct one, but it isn't conservative in the Burkean sense.

For the conservative Justices to be evaluated in terms of consistency, perhaps we ought to know which kind of conservatism we're talking about.

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