Embrace Your Inner Judicial Activist

Not blogging about the FUBAR-ness that the House GOP pulled last night, because I am hung over, and it’s a Friday, and the sky looks like ashen.

Instead, I’m going to talk about something near and dear to my heart: jurisprudence. In my malingering state, I read this article on Reason, discussing Scalia’s decision in Heller. Damon Root’s argument essentially boils down to the claim that Scalia (who wrote the majority opinion) was inconsistent in applying his philosophy of judicial restraint in Heller:

“Following Scalia’s own rhetoric of modesty and restraint, why should the Supreme Court substitute its wisdom for that of the local officials directly accountable to the inhabitants of Washington, D.C.? What makes handgun bans and mandatory trigger locks clearly unconstitutional but not other “longstanding prohibitions,” to borrow Scalia’s phrase? More importantly, why entangle the federal courts in the political thicket at all? As Justice John Paul Stevens noted in his dissent, “no one has suggested that the political process is not working exactly as it should in mediating the debate between advocates and opponents of gun control.””

But this is not even the real argument of the article: Root’s real argument is to say that both judicial activism and judicial restraint are misguided philosophies. In his opinion, the real role of the judiciary is this:

“If anything, such examples confirm that the last thing we need is more or better judicial restraint. What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.”

This just sounds strange coming from a libertarian perspective, but on closer examination, I think it makes sense. In fact, I will go one step further: if judges aren’t “activist” (in the derogatory sense of the word often employed by the right), then they might as well not be judges.

Damon Root is right: the whole purpose of the court is to protect individual rights against the tyranny of the majority. This is the only thing that legitimates the existence of a supremely powerful, undemocratic institution in a democratic polity. The right always complains about “legislating from the bench,” except, of course, when such legislating from the bench goes their ideological way, as it did in Heller.

But instead of always being trapped in this discourse of “activism vs. restraint,” let’s just all recognize that this is what we have accepted when we adopted the Constitution. Yes we’ve given up a huge amount of power to judges who are not held accountable, but we’ve only done so because we think it’s worth the sacrifice. The right and the left both need to fucking acknowledge this. It’s just rational choice theory guys.

However, I am assuming, up until now, that it is, in fact, worth the sacrifice. Maybe it isn’t, and whether it is or isn’t can only be determined by the polity itself. One could make the argument of revealed preference by saying that since we haven’t changed those parts of the Constitution dealing with the judiciary, we therefore find the sacrifice acceptable, or at least tolerable.

Sure, it sounds plausible, but here I proffer an alternative: maybe the American people are not smart enough, or don’t care enough, to really think about whether it is in fact worth the sacrifice. This simply isn’t brought up in American political discourse: we tacitly accept the premise of the Judiciary, but we also bitch about it incessantly. It’s become an easy and cliched target. We can’t have it both ways.

That’s all I’m saying.

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