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.