The Future of Conservative Anti-Activism Rhetoric

By Mike Dorf

As Barry Friedman observes in The Will of the People, one of the most striking features of the last 20 years or so is that the Supreme Court has come under sustained criticism from both the left and the right for its ostensible judicial activism. Each side, of course, has been unhappy about different cases, but the combined effect was and remains unsettling. As the median Justice, Justice Kennedy, in particular, is simultaneously denounced as a radical lefty for supporting gay rights and the rights of detainees, and as a radical righty for voting to invalidate affirmative action and campaign finance regulation.

Both sides could be simultaneously right. If one thinks that in general courts should defer to the outputs of legislative bodies, then a jurisprudence that invalidates some laws as insufficiently liberal and other laws as insufficiently conservative would be highly problematic. But few criticisms of the Court take this form. In general, critics tend to denounce the decisions invalidating laws they like without accepting the other side of the coin: that this is the price of other decisions invalidating laws they dislike.

Nonetheless, the right has enjoyed a tactical and rhetorical advantage well illustrated by the events of the last week. Even as Republican AG's around the country demand that the courts invalidate health care reform legislation that was the product of a year-long debate and for which Democratic lawmakers are pretty clearly on the hook politically--i.e., even as they demand what, if the shoe were on the other foot, they would almost certainly denounce as judicial activism--it is obvious that they will continue to denounce as judicial activism any liberal decisions striking down legislation. Indeed, some conservatives will even denounce as judicial activism decisions NOT to invalidate laws and policies they dislike, as happened in the wake of Kelo.

It's tempting to dismiss such rhetoric as unprincipled, but I believe that much of it is sincere. Many conservatives believe:
1) Originalism is the only legitimate approach to constitutional interpretation;
2) Originalism almost invariably leads to politically conservative results;
3) It is therefore impermissibly "activist"--in the sense of judges substituting their views for what the Constitution "really" requires--for the Court to reach any liberal results.

Needless to say, this syllogism is extremely vulnerable at both points 1) and 2), and therefore at point 3). Yet I think we liberals misattribute insincerity to conservatives when we point out the audacity of their willingness to resort to what, from our perspective, looks like litigation deeply at odds with their rhetoric about the importance of judicial restraint. Given their very dubious but sincerely held premises, there is no contradiction.