There’s a reason beyond garden variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Washington Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy.