George Will, of all people, says conservatives should favor judicial activism

George Will

For years now, I’ve been arguing here that of all the hypocrisies peddled by political conservatives, few are as ridiculous as their avowed antipathy toward so-called judicial activism.

This right-wing bugaboo arises from a principle called “judicial review,” which is the power of a court to review an act of legislation to see if it comports with the U.S. Constitution. For 211 years now, the Supreme Court has claimed the authority to void acts of Congress if they are seen to violate our national charter.

But whenever the high court exercises this authority to strike down an act of Congress that conservatives favor, a great cry arises that the justices have usurped the legislative role and are creating laws rather than just interpreting them.  They are said to be engaging in judicial activism.

A funny thing about this, however, is that the right-wingers don’t mind at all if the court voids certain laws they don’t like. For example, when the high court struck down several gun-control measures in recent years — measures that had been adopted by duly-elected lawmakers — nary a peep was heard about judicial activism.

But when the court upheld the Obamacare the year before last, Michele Bachmann, among others, said it was “an activist court” — although it was exactly the opposite. She was disappointed because the court did not overturn a law that was duly enacted by the people’s representatives in Congress.

Of course, this whole thing about judicial activism is silly on its face. The only basis for overturning any law — whether it’s one that conservatives favor and liberals dislike or vice-versa — is that it arguably violates the U.S. Constitution. I say “arguably” because judges don’t always agree on the constitutionality (or lack thereof) of certain laws. Moreover, interpretations of the Constitution have evolved over the past 200-plus years. There have been cases, for example, in which what was eminently constitutional according to the courts of the 19th century was found to be fundamentally unconstitutional by the courts of the 20th or 21st centuries.

Which brings us to a column by conservative pundit George Will in which he ARGUES that judicial activism isn’t a bad thing:

Disabusing the Republican Party of a cherished dogma, thereby requiring it to forgo a favorite rhetorical trope, will not win Clark M. Neily III the gratitude of conservatives who relish denouncing “judicial activism.” However, he and his colleagues at the libertarian Institute for Justice believe the United States would be more just if judges were less deferential to legislatures.

In his book “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” Neily writes that the United States is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.

Many judges, however, in practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.


Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for a regulation — even if the legislature never articulated it…

Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.


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