In Opposition to Looseness

October 21, 2008 • Commentary
By Robert A. Levy and William Mellor
This article appeared in The New Republic on October 21, 2008.

Federal appellate judge Richard A. Posner, from the Seventh Circuit, recently wrote in The New Republic (“In Defense of Looseness,” August 27, 2008) that the Heller decision striking down the D.C. gun ban constituted inappropriate judicial activism. Another conservative‐​leaning appellate judge, the Fourth Circuit’s J. Harvie Wilkinson, takes the same position in an article scheduled for publication in the Virginia Law Review. They join Justice John Paul Stevens and the other liberal dissenters in Heller, who argued that Justice Antonin Scalia’s majority opinion abandoned true judicial conservatism by dragging the Court into the “political thicket” of gun control. “Judicial restraint would be far wiser,” wrote Stevens, than mediating a political process that is “working exactly as it should.”

That’s quite an astonishing statement coming from Justice Stevens–the same Justice who had no such reservations just one day earlier when he voted to invalidate Louisiana’s death penalty for child rape and substitute an outright ban on capital punishment for any crime that isn’t fatal to its victim. Even more disturbing, however, are protestations from some conservative jurists, such as Wilkinson and Posner, whose call for “judicial modesty” can have the effect of erasing rights expressly enumerated in the Constitution. Deference to the legislature becomes an end in itself, notwithstanding the overriding objective of judges to interpret the Constitution according to its meaning and vindicate the promise of liberty that the Constitution embodies.

Reacting to the perceived excesses of the Warren Court and the ability of liberal interest groups to advance their agendas through the courts, many conservatives insist that courts must indiscriminately defer to the decisions of the executive and legislative branch. Yet blanket judicial deference effectively removes the courts from the meticulously crafted system of checks and balances that was designed by the Framers to prevent abuse of power. Over the years, the result of such judicial abdication has been to expand government, at all levels, at the expense of individual rights.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, through a cramped interpretation of the Constitution, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Both liberals and conservatives take comfort in their often unfounded belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, that trust in the democratic process ignores the realities of today’s governmental institutions. Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies and commissions. What’s more, politically powerful special interests concentrate their resources to glean benefits from government–transferring the burden to other taxpayers, who do not perceive the cumulative cost of multiple schemes, each of which has a seemingly inconsequential price tag.

The proper role for the court is one of principled engagement–applying the law and the Constitution to scrutinize the acts of the executive and legislative branches. Courts would be derelict if they endorsed unconstitutional acts merely because our elected representatives passed them. In that respect, overturning the D.C. gun ban was a clear example of principled judicial engagement.

In contrast, activism that renders legal judgments based on the judge’s public policy preferences should be roundly condemned. Results‐​oriented jurisprudence, based on subjective value judgments, may be proper for a legislator, but not for a judge. A judge’s role is to apply the law, not impose policy preferences.

The trick, of course, is to distinguish proper from improper judicial intervention. That task is complicated by laws that are often unclear–either because the legislature has not done its job, or has intentionally left gaps for the courts to fill; or because the meaning of the law depends on the meaning of the Constitution, which can also be unclear. Members of the Court must, therefore, have a theory of the Constitution–in particular, a respect for limited government and individual rights. Those were the principles that the Framers applied in crafting the Constitution. The Heller opinion, true to that framework, upheld a right based solidly on the text, purpose, structure, and history of our founding documents.

About the Authors
Robert A. Levy is chairman of the Cato Institute. William Mellor is president and general counsel of the Institute for Justice. Levy and Mellor are co‐​authors of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, on which this article is based. Levy also served as co‐​counsel to Dick Heller in District of Columbia v. Heller.