Tuesday, January 17, 2012

How To End Judicial Activism

If there's one thing that raises conservative ire, it's activist judges striking down [conservative] democratically elected laws based on expansive readings of constitutions. You thought you'd passed a law allowing the death penalty for the rape of a child under 12? Wrong, the Supreme Court says that's cruel and unusual!  Thought you'd passed a law to prohibit the abortion of  fetuses? Wrong, you hadn't counted on Justice Blackmun reading into the penumbras and emanations of the constitution a right to privacy, which somehow transformed into a right to abortion! Thought that you'd passed a law regulating political advertising in the leadup to an election in Australia? Wrong, you hadn't counted on the Australian High Court finding an "implied freedom of political speech" in the constitution. Etc etc etc.

Judicial conservatives tend to interpret the constitution narrowly, based on what the words meant at the time they were written. They also tend to be reluctant to overturn precedent, based on respect for the court's earlier opinions. Judicial activists tend to believe in the importance of modern social values in interpreting the constitution - in practice, they're happy to take very expansive interpretations of the words if it produces a social result they're happy with. They also don't tend to care as much about precedent, being willing to overturn settled doctrines if they don't like the result.

At the moment, political conservatives are screwed by judicial activism, because it acts as a ratchet towards ever more left-wing laws. The reason is as follows. Nearly all judicial activists tend to have left-wing political leanings. By that, I mean that the activist rulings they pass tend to be supportive of leftist political issues. Once an activist decision gets passed, judicial conservatives are split - some of them will want to overturn the earlier ruling because they think it misreads the constitution. Others will reluctantly let the ruling stand, because they also don't like overturning precedent. This means that the judicial conservatives will always be somewhat split in overturning these precedents, while judicial activists will be united in upholding them. Hence the bad judgments stand, and you end up with a ratchet.

There is, however, one possible way around this problem. Historically, political conservatives have tended to be judicial conservatives. A respect for political tradition tends to correlate with a respect for the vision of the founding fathers, and distrust of concentrating power in the hands of unelected judges.

But there's no reason this has to be the case. And I confidently predict the following - if you wanted to rapidly end liberals love affair with judicial activism, all you would need to do is appoint a bunch of politically conservative, judicially activist judges.

A rough model for this kind of thing would be the Institute for Legal Justice, which files lawsuits on behalf of private property rights, economic liberty, the first amendment, and other such matters. It's basically like the libertarian version of the ACLU.

And something similar could work in the courts too. For instance, suppose that a politically conservative activist court decided that government licensing of commercial transactions was illegal. There's lots of crap bases for doing this! It could be some oddball combination of freedom to assemble (under the first amendment), and something to do with monetary transactions being a form of speech. Sound ridiculous? It is, but an implied freedom of commerce is not really more ridiculous than an implied right to privacy.

This kind of ruling would drive liberals batty. Suddenly you'd have grounds to overturn all sorts of commerce-killing health, safety, and environmental regulations, all protected with the force of the constitution. And in no time flat, liberals would suddenly rediscover the joys of sticking to the original interpretations. How dare those judges start overturning the popular will with their social engineering! And the new judges would solemnly utter that the constitution was a living, breathing document, and the current political climate was increasingly intolerant of interference in commercial transactions. And liberals would be forced to reply "but... but... but..."

As well as being hilarious and full of schadenfreude, this would force liberals to ask themselves whether they really liked activist courts after all. The danger of expanding government power is that eventually it gets wielded by the party you don't like. If courts played by the same rules, we might ironically (at least in the long run) end up with less appetite for judicial activism. The cost is the politically conservative judges would have to prostitute their views on constitutional theory, which, for better or worse, they don't seem to want to do.

A pity, really. It would kill off judicial activism, or it would at least level the political playing field that activism takes place on. Frankly, either one would be an improvement on the status quo.

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