For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions — school prayer, abortion, busing, the death penalty — that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. [my emphasis]
As Matt points out, virtually no conservative actually believes that the Court should always defer to the legislature on contestable questions, so this is just question-begging. What’s even funnier, however, is how transparently outcome-oriented Krauthammer’s list is; the phrase “interpretive role,” which carries all the weight in the argument, is an empty shell that can easily be used to defend any of the decisions he decries. Since we’ve debated it enough, let’s leave aside abortion for a second. His other choices are canny because (unlike abortion) they represent positions where judicial decisions have been genuinely unpopular with the public. But do decisions prohibiting school prayer represent the court abandoning an “interpretive role”? Obviously, this is ridiculous; the Establishment Clause is surely relevant to the question of school prayer, and even Rehnquist’s theory of “nonpreferentialism” clearly prohibits direct religious indoctrination by the state, which was the subject of the Court’s first opinions in the field. With respect to busing, even leaving aside the fact that the Supreme Court has never required busing, it can reflect an “arrogation” only if one believes that Brown v. Board was incorrectly decided, which few conservatives are willing to do (at least in public.) Courts unquestionably have the power to order remedies in response to constitutional violations by state actors; one can argue that busing is unwise or ineffective, but these are not questions of constitutional interpretation. With respect to the death penalty, the only “radical” change ordered by the court was a temporary ban–that lasted less than 5 years. In addition, it’s important to note that the Court did not argue that the death penalty was inherently unconstitutional, but that it was unconstitutional in its application (hardly a “radical” position given the way in which the death penalty–which was most frequently used in the apartheid states–was actually applied in the decades preceding Furman.) The Constitution’s due process and equal protection clauses plainly make the application of criminal statutes matters for judicial review. I agree that the Marshall/Brennan position that the death penalty is always prohibited by the 8th Amendment is implausible, but with the exception of a few months at the end of Blackmun’s career it never commanded more than 2 votes. (And, of course, given the broad, abstract phrasing of the 8th Amendment, simply intoning the word “intperpretation” does not tell you if Brennan and Marshall are wrong.)
So, in other words, this has nothing to do with constitutional interpretation; Krauthammer doesn’t even tell us what his theory is, or under what theory the 1st Amendment permits state endorsement of religion or the powers of “law and equity” forbid local courts from ordering remedies in response to constitutional violations. It’s just a catalogue of policy outcomes he doesn’t like. Moreover, he of course ignores obvious examples of conservative justices “arrogating” the role of legislatures–for example, magically transforming the 11th Amendment from saying that you cannot sue another state in federal courts to saying that you cannot sue your own state in federal court–that may or may not be right but are certainly not consistent with some general theory of judicial deference to legislatures. And, of course, this is unsurprising; the idea that most American conservatives believe in “judicial restraint” in any non-tautological sense is just a myth, and judicial restraint has nothing to do with conservative opposition to the Miers nomination.