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CRC Op-eds and Letters to the Editor

Judicial Restraint Is Good Policy
Timothy J. Dowling
Appeared in LEGAL TIMES OF WASHINGTON
December 9, 2002

To the editor:

In your Nov. 25 issue, Bruce Fein ["Creaky Court Criticism,"] and Scott Gerber ["Whose Judges Are They?"] miss the point behind the growing criticism of conservative judicial activism.

For years, conservative scholars stressed that the proper role of a judge is to interpret, not make, the law. More recently, however, some conservatives have urged judges to abandon this traditional role to advance a political agenda. The Institute for Justice proclaims on its Web site that "conservative judicial activism is neither an oxymoron nor a bad idea." James Huffman has worried that "the Reagan revolution will come to nothing" if judges sit on their hands in the name of judicial restraint.

An increasing number of Reagan-Bush appointees -- such as Judges John T. Noonan, J. Harvie Wilkinson III, and Bobby Baldock -- have criticized conservative judicial activism as just as illegitimate as its liberal counterpart. Of particular concern is the Supreme Court's crusade to expand immunity under the 11th Amendment, and the concomitant narrowing of Congress' enforcement power under the 14th Amendment, a project divorced from the text, original meaning, and history of those provisions. Activists also are challenging environmental safeguards and other community protections under a radical reading of the takings clause, which even Justice Antonin Scalia acknowledges was not originally understood as applying to land-use regulation.

Rather than addressing these legitimate concerns, Fein and Gerber knock down straw men. In his review of Judge Noonan's thoughtful book, Narrowing the Nation's Power, Fein hyperventilates that Noonan is proposing to abolish judicial review. Gerber dismisses the concerns expressed by University of Chicago law professor Cass Sunstein as simply the views of a "liberal" who believes "that conservative judges aren't endowed with the same power to strike down laws . . . that their liberal predecessors once enjoyed."

But Noonan, Sunstein, and many others concerned about conservative judicial activism are not calling into question the power of judges to strike down laws. Rather, they seek to remind us that this awesome authority -- "the gravest and most delicate" of the Court's duties, in the words of Justice Oliver Wendell Holmes -- should be exercised only when there is a legitimate basis in the text of the Constitution. In the tradition of Robert Jackson, Felix Frankfurter, and many others, they recognize the respective institutional capacities of the judiciary and the legislature and urge appropriate deference to the coordinate branches of government. Otherwise, constitutional provisions become mere empty vessels into which judges may pour their personal political ideology at the expense of democratic decision making.

Timothy J. Dowling
Chief Counsel
Community Rights Counsel
Washington, D.C.

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