Lithwick on the Occasional Conservative Love of Judicial Restraint

Dahlia Lithwick, Slate’s terrific reporter and commentator on matters of law, writes about the same phenomenon I’ve described many times, conservatives who argue against judicial review while pretending to argue only against a specific ruling by the Supreme Court.

I mention this because one striking commonality in most of the dissents Friday is that weird vein of professional judicial self-loathing the dissenters choose to mine when they really want to go for the jugular. Whether it’s the chief justice’s jarring “Just who do we think we are?” to Scalia’s odd discursion on the lack of evangelical justices orreal Westerners on the Supreme Court. (“Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner [California does not count]. Not a single evangelical Christian [a group that composes about one-quarter of Americans], or even a Protestant of any denomination.”) Scalia is just dripping with contempt for this “select, patrician, highly unrepresentative panel of nine.” He takes a whack at his colleagues—and, I guess, himself—for separate and concurring opinions loaded with “silly extravagances.” He invites his readers to feel as impotent in the face of this judicial tyranny as he feels.

Thomas also rails at the fact that a “bare majority of this court” is able to “grant this wish, wiping out with the stroke of a keyboard the results of the political process in over 30 states.” And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

Recall back at oral argument when Elena Kagan said, “We don’t live in a pure democracy, we live in a constitutional democracy.” Isn’t that the answer to the dissenters’ political process questions? Or is that only the answer on campaign finance reform?

It reminds me very much of how Republicans suddenly discover the timeless virtue of fiscal responsibility at the precise moment that a Democrat is elected president. When a Republican president is in office, they will support all manner of irresponsible fiscal policies. They’ll start wars and cut taxes at the same time, leading to trillions of dollars in debt to be paid off, with interest, by the next generation. The moment a Democrat is in office, though, they will demand that a few billion dollars of spending be offset by cuts elsewhere in the budget, especially if the spending is for anything that might actually help people. Billion wise and trillion foolish, so to speak.

Conservative justices are all for “judicial activism” (here I use the only coherent meaning of that phrase, defined as a court that is active in overturning laws passed by Congress) when they disagree with a law that has been passed. When they agree with a law being challenged, they suddenly, almost magically, discover the virtues of judicial minimalism and they are shocked — shocked! — at their more liberal colleagues’ obviously profligate abuse of power. How convenient for them.

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  • sigurd jorsalfar

    The moment a Democrat is in office, though, they will demand that a few billion dollars of spending be offset by cuts elsewhere in the budget, especially if the spending is for anything that might actually help people.

    Fortunately for them, that Democrat is always perfectly happy to go along with them.

  • http://healthvsmedicine.blogspot.com cervantes

    There is no such thing as a conservative doctrine of jurisprudence. Conservative justices just say whatever it takes to get an outcome that concurs with conservative political objective. Consistency, from one decision to the next, is no value to them whatsoever.

  • marcus

    Torguescalia: “Not a single South-westerner or even, to tell the truth, a genuine Westerner…”

    No “True Westerners”, but they do have a shit-pot full of assholes.

  • Pierce R. Butler

    … “judicial activism” (here I use the only coherent meaning of that phrase, defined as a court that is active in overturning laws passed by Congress) …

    Why doesn’t deciding on questions that had not even been brought before the court (such as the spending limits, disclosure, etc, in Citizens United) count as a significant definition of J.A.?

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

    Conservative Love

    I had that album. “Stop! In the Name of Love that I Approve of” was the highlight, I think.

  • colnago80

    Re Marcus @ #3

    That comment by Scalia sounded like a shot at California native Kennedy.

  • http://festeringscabofrealityblogspot.com fifthdentist

    Well, we should have known the dissent was going to be harsh when it started out: “Anthony, you ignorant slut!”

  • http://artk.typepad.com ArtK

    @colnago80

    It almost certainly was. I’m sure that in Scalia’s opinion, Cliven Bundy is a True Westerner™.

  • llewelly

    Since California does not count, it’s obvious that “true westerner” can only refer to the Great Basin, which is where I was born and raised. I am true westerner, even though I abandoned cowboys for spaceships and dinosaurs by the time I was six or so. I have even gone to a number of family renions at various ranches, and went to a lot of “mountain man rendezvous”. Lived in a tipi for a few summers and even part of a winter too.

    According to Scalia, Scalia ought to be replaced by me. As a bonus, I know very little about constitutional law.

  • Numenaster

    Scalia’s dissent includes this remarkable line:

    “And to allow the policy question of

    same-sex marriage to be considered and resolved by a

    select, patrician, highly unrepresentative panel of nine is

    to violate a principle even more fundamental than no

    taxation without representation: no social transformation

    without representation. “

    This principle has never been described in his opinions to date or in legal scholarship. But he’s single-handedly elevated it importance above the actual cause of the Revolutionary War.

    In the same opinion, four pages later he blasts the majority for its hubris, saying

    ” They have discovered in the Fourteenth Amendment

    a “fundamental right” overlooked by every person

    alive at the time of ratification, and almost everyone else

    in the time since. ”

    Kind of like that fundamental principle he discovered four pages earlier, I guess. The projection is mind-blowingly strong with this one.

  • whheydt

    If Scalia is so concerned about the court not being a representative sample of the the country, he–being a member of a massively over represented religion–should retire forthwith. Perhaps a suitable replacement would be John E. Jones III. He might even get through the current Senate, what with being a Republican and all. (And, for the balance Scalia is seeking, an Episcopalian IIRC.)

  • chuckonpiggott

    Scalia’s whining about the make up of the court rings hollow when you point out that republican presidents have packed the court with conservative Catholics. Secure votes against reproductive rights. At least with GW’s nomination of Harriet Miers there was a Methodist considered.

  • logophobe

    …conservatives who argue against judicial review while pretending to argue only against a specific ruling by the Supreme Court.

    That should be the other way around, no?

  • StevoR

    @11. whheydt : B-b-but that’d mean Obama getting one more chance to a pick a SCOTUS judge! Wouldn’t it? Sure Scalia wouldn’t like that – great an idea as it is.