One of the things that has always irritated me about conservative judges and thinkers is their entirely incoherent application of the concept of judicial restraint. They rail endlessly about the evils of “judicial activism” whenever the court overturns a law they favor — and only then. Here’s Justice Scalia turning the outrage up to 11 in his dissent in the DOMA case:
“That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”
Why? Because the Supreme Court struck down a law that was passed democratically. Which he thinks is terrible — except, of course, when he doesn’t. Like just one day earlier, for example, when he gleefully struck down the Voting Rights Act, which was passed nearly unanimously by Congress. Or last year, when he voted to strike down the Affordable Care Act. When he disagrees with the law being challenged, all those concerns about judicial supremacy magically melt away, leaving behind a lovely marinara sauce on which he enthusiastically dines.
The entire concept of “judicial activism” as it is so often invoked by conservatives (and, lately, by some liberals as well) is a meaningless platitude. It just means “I disagree with this ruling.” If the ruling is a bad one, it’s a bad one — but it isn’t bad merely because the court overturns a law that was passed democratically. That was the entire purpose of judicial review. And this outraged rhetoric whenever the court does something the right doesn’t like should inspire little more than derision and dismissal.
Scalia is playacting here, putting on a show for his audience, a nearly pitch-perfect reenactment of Captain Renault feigning outrage. “I am shocked,” he says, “shocked to find out that there is judicial review going on here!”