I enjoyed Greg Weiner’s post on the Judicial Dilemma of Originalism, which has received some attention. Greg does a strong job of describing the conservative case for judicial restraint (as the competitor to conservative originalism). My problem, however, is that I don’t really understand the conservative case for judicial restraint.
It arises from man’s status as a political animal. It elevates to the status of constitutional principle the conservative’s dispositional distaste for whining, which is not to stigmatize all objections to losing positions as whining. Some objections are legitimate. It is, rather, to say that not all losses before legislatures are to be retried before courts, that part of the price of living in a political community is that one must accommodate oneself to the needs, preferences and tastes of others. One wins some battles but also loses others and one is not entitled simply to stomp off the playground—still less to shutter the playground for others—in the latter case.
Here is the problem. Majority rule – especially majority rule at the national level – is not really a conservative principle, unless it is significantly cabined by other principles. But judicial restraint toward Congress by federal courts will allow Congress largely to do as it pleases.
I understand why conservatives reacting to the Warren and Burger Courts would have favored judicial restraint. At a time before originalism had become popular, judicial restraint was a powerful way of criticizing an activist court based on a theory that made sense in a democracy. But the fact that judicial restraint made sense at a particular time for conservatives does not mean it is a principled or long term approach when it comes to constitutional interpretation.