J. Harvie Wilkinson III was one of those conservative judges in the pipeline, on the short list for a Republican Supreme Court nomination along with John Roberts, Samuel Alito, Michael McConnell and others. And then he quit his lifetime appointment. And now he has a book out, reviewed here by Jeffrey Rosen. He appears to reject all interpretive theories and urge only a vague “judicial restraint.”
Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson’s “Cosmic Constitutional Theory,” “the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.” As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is “our inalienable right of self-governance.”…
It’s not surprising that he indicts liberal justices like William Brennan for embracing a theory of living constitutionalism that “led the courts deep into the thickets of abortion, capital punishment and habeas corpus” by encouraging them to update the Constitution in light of contemporary values. While praising the living constitutionalists for “giving the elected branches leeway to craft fruitfully modern definitions of terms like ‘equality’ and ‘commerce,’” Wilkinson sharply criticizes Roe v. Wade, which he says “flunked simultaneously the three most basic interpretive tests” — it was unsupported by constitutional text, history or structure.
More surprisingly, however, Wilkinson is just as critical of the jurisprudence of original understanding, embraced by Justices Antonin Scalia and Clarence Thomas. Calling originalism a form of “activism masquerading as restraint,” he says that the methodology “fails to constrain judicial choices” when the historical evidence is ambiguous, which it is in every hard case.Wilkinson is withering about the Supreme Court’s recent decisions striking down gun control laws under the Second Amendment, which he compares to Roe v. Wade in their tendency to impose “judicial value judgments based on thin and shaky grounds.” He warns that a Supreme Court decision overturning health care reform would be just as activist as one legalizing gay marriage, although he approves of gay marriage, but not President Obama’s health care reform (“seems misconceived in many ways”), on policy grounds. And he has no patience for Bush v. Gore, which he calls “no friend of self-governance.”…
Having expressed dissatisfaction with the leading cosmic constitutional theories for “abetting judicial hubris,” Wilkinson confesses that he has no theory to offer as a substitute. Instead, he points to those great judges in the past “who took the habit of deference seriously,” including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, John Marshall Harlan and Lewis Powell Jr. These justices rarely struck down laws passed by Congress or the states, unless the constitutional arguments for invalidation were so clear that both liberals and conservatives could readily embrace them.
Why is it that not a single justice exemplifies this tradition of bipartisan judicial deference today? Now that the left and the right rely on the Supreme Court to reverse their defeats in the political arena, presidents of both parties are unlikely to pick nominees who believe the court should strike down very few laws. Instead, the liberal and conservative bases demand ideologically reliable nominees who are not very likely to disappoint them. The day has passed when a thoughtful conservative like Wilkinson, who refuses to toe the party line on guns or Bush v. Gore, could be appointed.
Certainly we should be concerned about Supreme Court justices being more concerned about politics than constitutional law, though I don’t think this happens quite as often as this criticism would suggest (and some are certainly worse than others at it). But judicial restraint is hardly the answer to that problem. Everyone is in favor of judicial restraint and deference, right up until they’re not in favor of it.
Personally, I favor much more of what might generically be called judicial activism, especially in defense of unenumerated rights. I agree with Randy Barnett that this is the only way to make the 9th Amendment meaningful. And I would apply strict scrutiny to virtually every law, not just in cases where it involves “fundamental rights” or affects “suspect classes.”