Flawed Thinking on Activist Judging: If Everybody’s Doing It, It Must Be Good!

This morning, the LA Times editorial board addressed an ongoing legal debate over the historic Supreme Court ruling that struck down parts of the D.C. handgun ban.

Yesterday, the NY Times highlighted the fact that two conservative federal judges, Richard Posner and J. Harvie Wilkinson III, have recently and strongly criticized Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller for being overly “activist” – a bitter insult to the proudly conservative Justice Scalia. Posner and Wilkinson have thus caused a stir among legal scholars by accusing the Heller Court of doing exactly what conservatives (such as Justice Scalia) accuse liberal justices of having done in Roe v. Wade – using “an ambiguous text to impose its policy preference on the nation, at great cost to the democratic process and to local values.”

Though the LA Times does not here take a stance on whether Heller was a good or bad ruling, it does with alarming ease dismiss the contention that activism in judging is a bad thing:
[Posner and Wilkinson’s] conclusion is pretty much guaranteed to infuriate Scalia, and that’s welcome by itself. What’s more enlightening about these critiques, however, is that they demonstrate that there are no real originalists, only activists of different stripes. And that’s OK. It is essential to recognize that one original intent of the Constitution’s framers was to create an elastic document, adjustable for the ages. So the task for the court is not to determine whether the framers kept rifles under their beds but whether owning a gun today serves the social function the Constitution created for it, namely, the preservation of militias.
The authors of the piece go on to note that the traditional conservative accusation that Miranda v. Arizona was an activist ruling is not only correct, but pretty much a good thing. By implication, then, the Times seems to be arguing that activist judging is quite alright, especially since both sides are now doing it.

This is a dangerous game to play, and one that does a huge disservice to all Americans, most notably the progressive community.

For years liberals have endured relentless attacks for having an activist approach to judging, but this is a label that needs to be shed. To call the Constitution an “elastic document,” or to encourage justices to let value judgments and modern day politics guide their decisions is a failing proposition for all Americans, but especially for progressives, whose values are in fact best upheld by the text, history, and principles of the document itself. These constitutional sources must be what control Supreme Court decisions in order to protect the integrity of the progressive legal movement, as well as the legal process as a whole. As we’ve noted in the past, any criticism of Heller should be focused less on the outcome and more on the arguments made in the majority and two dissenting opinions, none of which did that great of a job parsing text and history relevant to the question of whether the Constitution protects an individual right to possess handguns.

Contrary to the LA Times’ editorial activist judging is not a thing to be proud of. Conservatives and progressives alike should strive to uphold the text and history of the Constitution – and acknowledge that neither archaic obsession with 18th century intent nor adventuresome departures into modern day politics should have a place in the rulings of the high court.

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