Nelson Lund


Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they undermine liberal precedents or strike down liberal legislation. Defenders of judicial activism have all but disappeared. One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint. Any of the following quotes, for example, could easily have been uttered by any of the four most recent nominees: I’m not quite sure how I would characterize my politics. But one thing I do know is that my politics would be, must be, have to be completely separate from my judging. And I-I agree with you to the extent that you’re saying, look, judging is about considering a case that comes before you, the parties that comes [sic] before you, listening to the arguments they make, reading the briefs they file, and then considering how the law applies to their case-how the law applies to their case-not how your own personal views, not how your own political views might suggest, you know, anything about the case, but what the law says, whether it’s the Constitution or whether it’s a statute. Now, sometimes that’s a hard question, what the law says, and sometimes judges can disagree about that question. But the question is always what the law says. Sometimes it’s hard to give meaning to a constitutional term in a particular case. But you don’t look to your own values and beliefs. You look outside yourself to other sources. This is the basis for, you know, that judges wear black robes, because it doesn’t matter who they are as individuals. That’s not going to shape their decision. It’s their understanding of the law that will shape their decision. Judges have to be careful not to inject their own views into the interpretation of the Constitution, and for that matter, into the interpretation of statutes. That is not the job that we are given. That is not authority that we are given. [T]he role of judges is to interpret both the Constitution and law. Their role is to do both in accordance with their terms. And, so, that is the function of a judge. Clearly, a judge looks at the terms and tries to, if it’s not-if it’s the Constitution, what are the principles that underlie that provision of the Constitution, and it’s informed by precedent. If it’s a statute, you use principles of statutory construction, starting always with the words, and you give effect to Congress’s intent. That’s the role of a judge. I do not believe that judges should use their personal feelings, beliefs, or value systems or make their-to influence their outcomes. Some politicians and commentators have suggested that nominees are dissembling when they make such statements, and some of the sitting Justices have been accused of repudiating positions they took when seeking Senate confirmation. Usually, these charges are made by conservatives against liberals or by liberals against conservatives. Disinterested observers are likely to recognize that generalized professions of modesty and restraint by judicial nominees are carefully designed to say next to nothing of any substance. At most, nominees now seem to promise that they will exhibit a certain style in their future work. And that promise they generally do keep. The current members of the Supreme Court pretty consistently present their positions as manifestations of judicial restraint and frequently accuse their colleagues of violating this cardinal judicial virtue. Perhaps “judicial activism” just describes any decision with which the speaker very strongly disagrees. Before accepting this conclusion, perhaps we should consider the possibility that there are analytically distinguishable forms of judicial restraint to which different Justices adhere. Academic commentators have articulated and defended various theories of judicial restraint, but my purpose here is to examine the debate “at work,” so to speak, in an actual case. The Court’s recent decision in McDonald v. City of Chicago is an especially interesting example because strikingly different models of judicial restraint are adopted by subsets of the more conservative wing of the Court, and subtly different models are adopted by subsets of the more liberal wing. A close look at the opinions in the case suggests that each model has different strengths and weaknesses, but also that the models are by no means created equal. McDonald is a sequel to District of Columbia v. Heller, which was decided two terms earlier. In Heller, the Court undertook its first thorough consideration of the Second Amendment and resolved (at least as a matter of law) a longstanding academic debate about the nature of this constitutional provision. Writing for five members of the Court, Justice Antonin Scalia concluded (1) that individuals have a constitutionally protected individual right to keep and bear arms for self-defense, not just a right to serve in militias organized by state governments; and (2) that the District of Columbia’s handgun ban violated the Second Amendment. Justices John Paul Stevens and Stephen G. Breyer each wrote dissenting opinions, both of which were joined by all four dissenters. Stevens disputed Scalia’s textual and historical analysis of the original meaning of the Amendment and argued that it was meant to protect only militia-related interests, not an interest in individual self-defense. Breyer contended that even if one accepted the majority’s mistaken understanding of the original meaning of the Second Amendment, it should still be interpreted to permit the District of Columbia handgun ban. Immediately after the Heller decision was announced, separate sets of plaintiffs filed suits challenging similar handgun bans in Chicago and several of that city’s suburbs. Because Heller’s holding applies directly only to federal laws like the one in the District of Columbia, the plaintiffs invoked the Privileges or Immunities and Due Process Clauses of the Fourteenth Amendment. The district court and the Seventh Circuit rejected all of these claims on the ground that they were foreclosed by precedent. The Supreme Court granted certiorari in one of the Chicago cases, and concluded that the Constitution’s protection of the right to arms applies to state and local laws in the same way that it applies to federal laws. Justice Samuel A. Alito Jr.’s plurality opinion for four Justices relied on the Fourteenth Amendment’s Due Process Clause. Justice Clarence Thomas rejected this approach but reached the same substantive conclusion under the Privileges or Immunities Clause. Justice Stevens wrote a dissenting opinion for himself alone, and Justice Breyer wrote a dissenting opinion that was joined by Justices Ruth Bader Ginsburg and Sonia M. Sotomayor.