We at Cato, as at all think tanks, are engaged daily in the battle of ideas—and it never ends. As an illustration, consider a basic issue that from the outset has animated our work at the Center for Constitutional Studies, the constitutional role of the courts. We’ve encouraged judges to be neither “activists,” in the mold often of the Warren and Burger Supreme Courts, nor “restrained” and deferential to the political branches, as many conservatives had urged in response, but “engaged” in limiting governments to their authorized powers while securing rights consistent with the Constitution’s guarantees. And we, along with others who’ve shared that understanding, have seen a marked shift on that issue, especially among many conservatives. In fact, it is often liberals today who charge conservatives on the Supreme Court with “judicial activism” when they hand down decisions like they often did in the term just ended.
That’s why I was disappointed when I saw that the Wall Street Journal’s Dan Henninger, whose Thursday column is usually outstanding, was last week urging President Trump to replace retiring Justice Kennedy with someone who would end “judicial overreach”—as if that were the problem today. So I sent a letter to the Journal, which they’ve run today under the heading, “Correcting the Record on Judicial Activism.” Because the Journal is behind a paywall, let me reprint it here:
Daniel Henninger’s otherwise excellent Thursday column came up short this week (“Trump Blows Away a Penumbra,” July 5). His hope that President Trump’s new Supreme Court pick will end “judicial overreach” is understandable, but the far larger problem, as always, is legislative and executive overreach, for which the court is the constitutional remedy.
To be sure, the Warren and Burger Courts often did overreach. But since those days, the debate among conservatives and libertarians has slowly shifted from judicial “restraint” to “engagement,” aimed at checking lawless political activism (see my 1991 Wall Street Journal op-ed “Rethinking Judicial Restraint”).
To see why, look simply at Griswold v. Connecticut, the 1965 decision Mr. Henninger cites as the source of judicial overreaching. True, the court’s resort to “penumbras” and “privacy” to explain why Connecticut’s statute prohibiting the sale and use of contraceptives was unconstitutional strained credulity. A classic case of right result, wrong reasons, the court should have noted first that the state enacted that law under its basic police power—its power, mainly, to protect the rights of its citizens. The court should then have asked simply: Whose rights is this law protecting? Connecticut would have come up empty-handed. This was a pure “morals” statute, promoted by some, against the liberty of others.
Notice, there’s no need here to speak of “privacy” or to discover rights. The burden is on the state to justify its act, failing which there’s a right, by implication, to sell and use contraceptives. Nor does the holding in Roe v. Wade follow, because there the police power may very well be protecting the rights of unborn children. That is a decision properly left to states.
But beyond the constitutional infirmities with Mr. Henninger’s argument is a practical problem. What Senate moderate would vote for a nominee who believes that states have the kind of unbridled power that was at issue in Griswold—or in many decisions since, especially economic liberty cases where courts today are increasingly checking unconstitutional power? Proper judging means principled engagement, not judicial deference.
