The Roberts Court
Doug Bandow has a terrific article about the Roberts Court and judicial philosophy over at the American Spectator. Excerpt:
Washington is rife with awful arguments, shameless demagoguery, and flagrant hypocrisy, of course. But Smith’s concern lest “a majority of Supreme Court justices adopt a manifestly ideological agenda” and plunge “the court into the vortex of American politics” is almost too hilarious to repeat. Apparently the Warren and Burger Courts were merely following popular values when they overturned decades and even centuries of precedent to transform sizable areas of constitutional law. When they turned the law into a matter of judicial preference rather than constitutional interpretation, they presumably did so in a nonideological and nonpolitical fashion. …
Judicial philosophy obviously matters. Here the right long has gotten the argument much more correct than the left. Conservatives can and do argue about exactly what “original intent” should constitute — I believe that constitutional and legislative provisions must be understood in terms of the political compromises from which they sprang. What did the voters and ratifiers as well as drafters believe to be true? That may not always be easily discoverable, of course. Nevertheless, constitutional (and legal) understandings must be rooted in what the provisions meant when enacted. Otherwise there is little to prevent courts from becoming mini‐legislatures, enacting their preferences through shameless sophistry disguised as judicial opinions.
Learned liberal treatises on jurisprudence abound, justifying judicial activism on behalf of any number of ends. But all of these arguments lead to the same basic result: a much‐expanded state built on the tenets of modern liberalism. Once the official meaning of law is cut loose from what its specific provisions were originally expected to mean, the only restraint on judges is their personal temperament. If the Constitution means what judges say it does, it means nothing at all. A court that can eviscerate the property takings clause, for instance, can eviscerate the First Amendment guarantees for free speech and religious liberty, and the Fourth Amendment’s bar on unreasonable searches and seizures.
Although unbridled judicial activism is an unsatisfactory jurisprudential principle, the left has nowhere else to go because the Constitution is fundamentally, though not purely, a libertarian‐conservative document. The nation’s basic law is meant to constrain politics, to put many issues, centered around an expansive and expensive national government, out of bounds of the democratic process. In short, to be a liberal and believe in original intent is to be eternally frustrated.
Read the whole thing.
