A conservative case for judicial activism

Public Interest, Spring, 1993 by David P. Bryden

Conservatives sometimes remark that liberals would be less enamored of judicial activism if it were employed on behalf of conservative causes. A powerful polemical point, surely, but not one that has caused much insomnia in Cambridge.

For the premise of the argument--that conservative Justices might fashion an array of novel "conservative rights"--is known to be an almost entirely empty threat. Most conservatives reject that sort of activism, and so does the Rehnquist Court. When conservatives fault the Court, it is not for failing to create conservative rights, but for occasionally reaffirming liberal rights such as the right to abortion.

I have much sympathy for this view. I agree that the Court's role should, ideally, be narrowly circumscribed. In defending this ideal, however, conservatives have neglected to ask whether it is attainable--a curious omission for those who habitually accuse liberals of wishful thinking.

I will offer here some friendly criticisms of conventional conservative jurisprudence. My purpose is to acknowledge the political realities of constitutional adjudication, without sacrificing what is authentic and valuable in the concepts of neutral principles and the rule of law.

Framing the question

Scholars of all political creeds have assumed that the basic question in constitutional jurisprudence is: How should the Supreme Court interpret the Constitution? We do not ask how an individual Justice should interpret the Constitution, but rather how "the Court" should do so. There are obvious reasons for this. Judicial decisions are usually the product of at least some collective deliberation, and are handed down not as the edicts of individuals, nor even of a dominant majority, but rather in the name of the court. Yet the question of how a "court" should decide cases is--in an important sense--unrealistic. Courts don't think; individuals do. Even when Justices act in concert, their collective decisions require antecedent individual decisions.

Of course, in most legal contexts the convention that leads us to discuss what "a court" ought to do, rather than what an individual judge should do, is convenient and harmless. There is no important difference between the two. If we know how "a court" should decide an issue of contract law, then we know how an individual judge should decide the same issue. In the field of constitutional law, I will suggest, this is far less true. In constitutional law, unlike most other branches of law, there is no judicial consensus on the ground rules and aims of the enterprise. In constitutional law, liberal and conservative judges are not always playing by the same rules.

Mainstream conservatives believe that the most fundamental norm of constitutional adjudication is "judicial restraint." This is a loose term that I will define as a court's refusal, for principled reasons, to exceed its proper authority and role. Conservatives justify judicial restraint chiefly on two grounds. First, they argue that restraint is often required by the Justices' obligation to apply the original meaning of the Constitution ("originalism"), rather than engage in "result-oriented" judging. And second, conservatives believe that by confining the role of courts, judicial restraint preserves federalism and democracy.

These are the standard justifications for judicial restraint. My question is this: Do these justifications lose validity, for any individual Justice, if he or she discovers that most other Justices do not accept them?

Right, wrong, and in-between

In everyday life we commonly distinguish between courses of action that are right regardless of how others behave, and those that are right only if many or most others follow them. It is wrong, for example, for a prison guard to treat prisoners brutally. Such conduct does not cease to be wrong if all the other guards are brutal. It is also wrong to steal, even if you live in a neighborhood where theft is rampant. But often the propriety of conduct is affected by the practices of others, especially of one's competitors:

* A professor may believe that, ideally, teachers should devote most of their time to teaching, and far less to research. After observing his colleagues' behavior, however, he may reverse these priorities in order to maintain his standing in the profession.

* Assume the same professor is a conservative in a department dominated by leftists. For many years, they have discriminated against conservatives in hiring decisions. The professor may decide to oppose the hiring of leftist candidates, even though he believes that ideally professors should be hired without regard to their political views.

* A corporation that wishes to do business in a country where bribes are necessary to obtain the requisite permits, may engage in bribery even though the company's directors and officers deplore the custom and would abolish it if they could.

* A senator who opposes filibusters in principle, but observes that the other party has filibustered against bills he favors, may decide to filibuster against some of the other party's bills.