Rethinking Judicial Restraint

February 1, 1991 • Commentary
This article appeared on The Wall Street Journal on February 1, 1991.

When Congress passed the Federal Judgeship Act in late October, creating 85 new federal judgeships, it became clear once again that perhaps the most enduring power of the president is over the composition of the federal judiciary. With 85 new judgeships to fill, plus existing vacancies, President Bush could appoint 126 new judges this year alone. Add to this the 75 judges he has already named, as well as the appointments of President Reagan, and by this time next year, the Republican administrations that have occupied the White House for more than a decade will have appointed nearly three‐​quarters of the federal judiciary.

To be sure, Congress can check the president, as it did with the nomination of Robert Bork. But in the long run the president will prevail. One sees that today, as one nominee after another exhibits the “judicial restraint” that was the mark of the Bork vision.

New Deal Legacy
In a Dec. 31 page one article, Washington’s Legal Times observed that the Bush judges, like their Reagan predecessors, “have articulated in their confirmation proceedings and in their rulings bedrock conservative doctrine: literal interpretation of statutory and constitutional texts, deep skepticism of claims for new rights, reluctance to reach questions not acutely presented by the case at hand, and regular deference to executive and law‐​enforcement power.” To this list one should add an abiding deference to the legislature — the legacy of the New Deal Supreme Court.

Not all of the Republican appointees are of the restraint persuasion, of course. In a recent Ninth Circuit decision, for example, two Reagan appointees, Alex Kozinski and John Noonan, had no difficulty siding with the majority in finding that an amendment to the California state constitution prohibiting political parties from endorsing candidates for judgeships amounted to an infringement of free speech. (By contrast, two Bush appointees, Pamela Rymer and Ferdinand Fernandez, deferred to the legislature.) And another Reagan appointee, Judge Pasco Bowman of the Eighth Circuit, recently told a packed audience at the Cato Institute that the Constitution protects economic liberties no less than other civil rights—a view that the judicial restraint school abandoned in the wake of the New Deal. For the most part, however, it is judicial restraint that drives the Reagan‐​Bush judges.

In print for barely a year, then, Mr. Bork’s “The Tempting of America,” can already be said to have carried the day. Less charitably, one could say that his target, “judicial activism,” has passed him by. For the activism of the Warren Court is today hardly to be found. That gives liberals pause, of course. But it should give conservatives pause as well, not simply because Congress and the bureaucracy have only occasionally come under conservative control, but because, more deeply, the natural tendency of the political branches is toward growth in government.

Thus conservatives and classical liberals alike — indeed, anyone who favors limited government and a wide range of both personal and economic liberties — should be concerned when the third branch of government effectively withdraws from the scene. The dangers of popular tyranny were well known to the Founders. They recognized the tendency of “factions,” whether majoritarian or special interest, to use government for their own ends, expanding the state in the process. It was for this reason that they drafted a written constitution and created an independent judiciary to interpret it — a judiciary that was meant, as James Madison put it, to be “the bulwark of our liberties.”

Yet how can a judiciary dedicated to restraint be “the bulwark of our liberties”? To be sure, an unrestrained judiciary is no bulwark either — that is why we have a constitution, and why Mr. Bork’s critique of the excesses of “judicial activism” is perfectly correct. But it is no answer to the perennial problem of securing ordered liberty to ask the judiciary to serve as handmaiden to the other branches. Too often that is precisely what judicial “deference” amounts to. When courts extend a presumption of constitutionality to statutes and executive actions, they simply buy into the majoritarianism that grew out of the Progressive Era. That majoritarianism was no part of the original design. On the contrary, the Founders took every step to protect our liberties, even from the majority — indeed, especially from the majority.

If they are serious about liberty, then, conservatives need to rethink their position on judicial restraint. And what better place to begin than with Mr. Bork’s central vision — wrongly ascribed to Madison: America’s “first principle is self‐​government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Its second principle, Mr. Bork continues, is “that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.”

That gets the Madisonian vision exactly backward. America’s first political principle may indeed have been self‐​government, but its first moral principle — and the reason the people instituted government at all — was individual liberty, as the Declaration of Independence makes plain for “a candid world” to see.

Indeed, America did not throw off a king only to enable a majority to do what no king would ever dare. No, the Founders instituted a plan whereby in “wide areas” individuals would be entitled to be free simply because they were born so entitled, while in “some” areas majorities would be entitled to rule not because they were inherently so entitled but as a practical compromise.

That gets the order right: individual liberty first; self‐​government second, as a means toward securing that liberty — with wide berths to state governments, to be sure. That is why the Constitution enumerated the powers of Congress and the executive, to limit them. And that, after all, is why the Bill of Rights concludes with the Ninth and Tenth amendments: to make clear that Americans begin and end with their rights, enumerated and unenumerated alike.

The judiciary, then, must not shirk its duty to secure those rights by deferring to the political branches in the name of “self government.” Rather, it must hold the acts of the other branches up to the light of strict constitutional scrutiny. There is no place for “restraint” in this. Nor, of course, is there any place for the kind of “activism” that takes the judge beyond the Constitution. That document, however, is rich enough to enable the judge to discover the rights that are there to be discovered. To do that he must start with the text, of course. But where the text is broad or unclear he will have to go behind the document to the original understanding, including the theory of natural rights that informed that understanding, giving meaning to the text and legitimacy to the document as a whole. This is not unwarranted “activism.” It is what judges are appointed to do.

In this regard, Judge Bowman’s remarks were particularly on point. For not only did he speak of natural rights to property and contract, which he located in the Constitution, but he called into question a pair of judicial shibboleths invented by the New Deal Court that are subscribed to today by liberals and conservatives alike: the idea that there are two “classes” of rights, “fundamental” (like freedom of speech) and “nonfundamental” (like freedom of contract); and two standards by which to review laws or acts purporting to violate those rights, “strict scrutiny” and “minimal scrutiny,” respectively.

It is no small irony that those New Deal doctrines are at the core of conservatives’ “judicial restraint” approach — with its reliance on text and original understanding, misconstrued as majoritarianism — for they are nowhere to be found in either text or original understanding. On the contrary, they fly in the face of both.

Secures Liberty
It is time, then, for conservatives to return to their roots, which are located not in the majoritarianism of the Progressive Era, much less in the judicial inventions of the New Deal, but in the vision of the founding. That vision begins with individual liberty. It secures that liberty by constituting a government of separated and divided powers. And it subjects those powers to the principled scrutiny of an independent judiciary.

Restraint in the exercise of that scrutiny is worse than out of place. It undermines the original design, enabling the political branches to move into the vacuum, which of course is precisely what they have done. The irony is that conservatives, properly opposing the politicization of the law by the courts, have enabled our law to be politicized nonetheless through their misplaced restraint. The time has come to rethink “judicial restraint” and restore the judiciary to its rightful place in a system of separated powers.

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