Home / The Resilient "Conservatives Believe In Judicial Restraint" Myth

The Resilient "Conservatives Believe In Judicial Restraint" Myth


I wasn’t sure if it was worth linking to Tom Schaller’s analysis (using the great data collected by Tom Keck), as I assume it’s well-known that the idea that conservative judges are more “restrained” is false. Most recent attempts to charge that liberal judges are more “activist” at least rely on tautology — i.e. “it doesn’t count as activism if I agree with a decision on the merits” — as opposed to advancing empirically indefensible claims that conservative judges are more deferential to elected officials.

But then a law professor actually gives us the old school, transparently false version:

John Roberts said essentially the same sort of things about judging, but the humble judge pose is perhaps less strained coming from a conservative. Now, I do think Sotomayor and her advisers did study the John Roberts confirmation performance. This — I think they decided — is the ideal. So be like that. But it is more absurd coming from a judge who, we think, is going to do more expansive things with the clauses of the Constitution.

Now there’s some world-class rube-running! To state the obvious, as Keck has demonstrated conservative judges are plainly not more deferential to public officials or more humble in their constitutional ambitions. There are many constable issues — affirmative action, the commerce clause, the Second Amendment, the Eleventh Amendment “not so much for what [the 11th Amendment] says, but for the presupposition . . . which it confirms,” the takings clause, campaign finance, substantive due process where punitive damage are concerned, etc. etc. where conservatives like Roberts favor a much more expansive readings of ambiguous constitutional provisions than liberal judges. (This doesn’t mean that these readings are necessarily wrong, just that they’re obviously not more “humble”.)

As I think any serious student of the court will recognize, conservative judges are no more deferential to the political branches — the only difference are the constituencies they protect and the levels of government whose actions they’re more likely to nullify. And Althouse’s howlers are especially egregious when you consider that the main lines of attack against Sotomayor — affirmative action and gun rights — involve cases where conservatives believe that Sotomayor will be excessively deferential to electorally accountable officials.

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