Former Federal Judge Urges Judicial Restraint

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.”

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  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    And I would apply strict scrutiny to virtually every law, not just in cases where it involves “fundamental rights” or affects “suspect classes.”

    Nah.

    I suspect you’re not actually in favor of that. When a legislature passes a zoning law, how do we tell if it’s “narrowly tailored” to a specific “compelling governmental interest”?

    The need for zoning laws at all? Sure, that’s a compelling gov interest. But that’s not how a zoning law would be challenged.

    Take a look at s1 jurisprudence from Canada and the closely related South African constitutional jurisprudence after SA adopted the Canadian Oakes test. (Sometimes “Oakes Test”, but not *usually* written that way by Canadian lawyers.)

    I suspect that you, like me, would be happier with a balancing test that essentially applies strict scrutiny (frankly it’s even more strict than US strict scrutiny) for whether or not a right is violated, but then provides an opportunity for the Crown to justify the infringement.

    In the US there is no distinction between “violation/infringement of right” and “constitutionally justifiable violation/infringement of right”. In some sense US jurisprudence is correct that “there is no right” to a specific form/instance of expression [or whatever, call it “X”] if the government is actually allowed to ban or curtail X.

    But I find it clearer from a policy point of view and easier for the uninitiated voter to discuss and come to conclusions if there are separate stages where we the government specifically concedes what freedoms/rights are being curtailed and how – and thus that there are benefits to the freedoms/rights in question – and then goes about justifying taking them away. I think we gain a lot in terms of public understanding and engagement and even in policy making (particularly but not only by non-lawyers) when we separate the questions in this way.

  • themadtapper

    Sounds like the judicial version of agnosticism, waffling about in some nebulous middle ground where he can claim superiority over the ones that have chosen a side.

  • scienceavenger

    All constitutional theories have the same fundamental problem…the Constitution. In no other area of life would we tolerate living life by a 225 year old rulebook. We’d rightfully decry it as lunacy. It’s time to point out the emperor’s lack of clothes.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    scienceavenger “In no other area of life would we tolerate living life by a 225 year old rulebook.”

    REALLY?!!! WHAT ABOUT THE BIBLE?!!! ITS BEEN AROUND FOR SIX THOUSNAD YEARS AND HAS NEVER BEEN CHANGED!!!

  • eric

    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.

    How weak. I have very little patience for the sort of guy who punches holes in theories/procedures but never tries to offer a better option. That’s a creationist’s game (though they certainly aren’t the only ones who play it). What such uber-skepticism usually means is: he has a procedure or arbitrary set of rules he wants you to follow, but he knows it sucks if scrutinized using the same techniques he uses to scrutinize other people’s ideas.

  • Chiroptera

    Wilkinson confesses that he has no theory to offer as a substitute.

    I guess that a good judicial interpretation is like pornography: I’ll know it when I see it!

  • abnormalwrench

    I’m curious what he meant by Roe v Wade being radical misreading of the constitution? I know a lot of people don’t LIKE the ruling, but I can’t think of anything that is outrageous about it on a legal basis. There was a conflict between states that needed to be settled in some way, the result seemed fairly middle-of-the-road to me, what would have been the more constitutional argument? Leave it all up to the states?

  • Donnie

    “…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.

    So, he wants Justices that live in Ivory Towers and unconnected to the values of a modern society? The ethics, ideas, and morals of 18th Century America is no way to govern in the 21st Century. It’s obvious that women were considered an afterthought in the 18th century and allowing abortion through proper medical care was not even conceivable at the time (yes, women still had abortions most likely similar to back alley abortions). I do not want Justices considering the interpretive tests of the Constitution when it regards individual body rights. The Constitution must be a living document else it is just a piece of paper enshrining the rights of the haves against the rights of the have-nots.

    /soapbox

  • karmacat

    In a lot of ways, minorities depend on the judicial system to protect them from the majority, especially since Supreme Court justices don’t have to campaign and try to be popular. Unfortunately, it looks like some of the Supreme Court justices are being bought off by special interests, like the Koch’s

  • thebookofdave

    The title “Cosmic Constitutional Theory” is just a way to assert his premise as fact, as if it were a fundamental force or decreed by a supernatural higher power. In other words, he wants to invoke his personal opinion as unquestioned authority: another form of special pleading.

    Also, when did habeas corpus become controversial? It was constitutional long before the USA had a constitution. The concept is less status quo than the divine-right theory of kingship.