Because judicial decisions have propelled American history and because a long-standing judicial mistake needs to be rectified, the most compelling of the many reasons for electing Mitt Romney is that presidential elections shape two of the federal government’s three branches. Conservatives, however, cannot coherently make the case for Romney as a shaper of the judicial branch until they wean themselves, and perhaps him, from excessive respect for judicial “restraint” and condemnation of “activism.”
In eight years, Ronald Reagan appointed 49 percent of the federal judiciary; Bill Clinton appointed 43 percent. Clint Bolick says that the power to nominate federal judges has become “the grand prize in presidential elections,” because presidents now choose appointees with special attention to judicial philosophy and because human longevity has increased…
[A] conservative majority might rectify the court’s still-reverberating mistake in the 1873 Slaughterhouse cases. It then took a cramped view of the 14th Amendment’s protection of Americans’ “privileges or immunities,” saying these did not include private property rights, freedom of contract and freedom from arbitrary government interference with the right to engage in enterprise. This led in the 1930s to the court formally declaring economic rights to be inferior to “fundamental” rights. This begot pernicious judicial restraint — tolerance of capricious government abridgements of economic liberty.
One hopes that Romney knows that on today’s court the leading advocate of judicial “restraint” is the liberal Breyer, who calls it “judicial modesty.” Contemporary liberalism regards government power equably, so the waxing of the state seems generally benign. Yet Romney promises to appoint “restrained” judges. If, however, the protection of liberty is the court’s principal purpose, it must not understand restraint as a dominant inclination to (in the language of Romney’s Web site) “leave the governance of the nation to elected representatives.”
Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.
In other words, since the people’s representatives might have the temerity to restrain the “economic freedom” of corporations and billionaires to enslave the entire population, it’s important for “conservatives” to throw Burkean modesty overboard in favor of judicial activism.
Of course, we already knew that this was the modern-day conservative position. But it’s jaw-dropping to watch everyone’s favorite bow-tied, supposedly “reasonable” conservative state the reversal so openly in a major newspaper.