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Judicial Restraint Is Good Policy
Timothy J. Dowling
Appeared in LEGAL TIMES OF WASHINGTON
December 9, 2002
To the editor:
In your Nov. 25 issue, Bruce Fein ["Creaky Court Criticism,"]
and Scott Gerber ["Whose Judges Are They?"] miss
the point behind the growing criticism of conservative judicial
activism.
For years, conservative scholars stressed that the proper
role of a judge is to interpret, not make, the law. More recently,
however, some conservatives have urged judges to abandon this
traditional role to advance a political agenda. The Institute
for Justice proclaims on its Web site that "conservative
judicial activism is neither an oxymoron nor a bad idea."
James Huffman has worried that "the Reagan revolution
will come to nothing" if judges sit on their hands in
the name of judicial restraint.
An increasing number of Reagan-Bush appointees -- such as
Judges John T. Noonan, J. Harvie Wilkinson III, and Bobby
Baldock -- have criticized conservative judicial activism
as just as illegitimate as its liberal counterpart. Of particular
concern is the Supreme Court's crusade to expand immunity
under the 11th Amendment, and the concomitant narrowing of
Congress' enforcement power under the 14th Amendment, a project
divorced from the text, original meaning, and history of those
provisions. Activists also are challenging environmental safeguards
and other community protections under a radical reading of
the takings clause, which even Justice Antonin Scalia acknowledges
was not originally understood as applying to land-use regulation.
Rather than addressing these legitimate concerns, Fein and
Gerber knock down straw men. In his review of Judge Noonan's
thoughtful book, Narrowing the Nation's Power, Fein hyperventilates
that Noonan is proposing to abolish judicial review. Gerber
dismisses the concerns expressed by University of Chicago
law professor Cass Sunstein as simply the views of a "liberal"
who believes "that conservative judges aren't endowed
with the same power to strike down laws . . . that their liberal
predecessors once enjoyed."
But Noonan, Sunstein, and many others concerned about conservative
judicial activism are not calling into question the power
of judges to strike down laws. Rather, they seek to remind
us that this awesome authority -- "the gravest and most
delicate" of the Court's duties, in the words of Justice
Oliver Wendell Holmes -- should be exercised only when there
is a legitimate basis in the text of the Constitution. In
the tradition of Robert Jackson, Felix Frankfurter, and many
others, they recognize the respective institutional capacities
of the judiciary and the legislature and urge appropriate
deference to the coordinate branches of government. Otherwise,
constitutional provisions become mere empty vessels into which
judges may pour their personal political ideology at the expense
of democratic decision making.
Timothy J. Dowling
Chief Counsel
Community Rights Counsel
Washington, D.C.
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