Activist conservative judges

One of the great canards of our time, aside from the phrase 'liberal media,' is the proposition that righteous, God-fearing Americans are under attack by the liberal 'activist judges.' This phrase is usually trotted out when some group of law abiding citizens makes the greedy, outrageous demand that the equal protection clause of a constitution (gasp) actually apply to them.

According to this canard, judges should let legislators do whatever they want, the constitution (state or federal) be damned, because unrestricted majority rule is the only principle of governance worth having.

Except when it comes electing the president, of course.

I've already written more detailed essays on the fallacies surrounding judicial activism (such as here). But I now have one more.

The Angry New Yorker blog lavished praised on Supreme Court Justice Antonin Scalia because his view of constitutional interpretation via "originalism" is very flexible - as it leaves the political process to run its course whenever possible [emphasis mine], rather than freezing issues by "constitutionalizing" wide areas

This is pretty much the core argument of opponents of so-called judicial activism. Let the legislators legislate, not the judiciary. Judges should stay out of the political process. Conservatives like Scalia understand this and liberal judges don't.

Or so goes the conventional wisdom.

So needless to say, I was interested to read this portrait in The Atlantic of Chief Justice William Rehnquist.

The portrait is rather flattering of the Chief Justice and argues, among other things, that liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas.

It notes that while all the conservatives on the Rehnquist Court say for public consumption that the judiciary should occupy a modest role in American politics and should defer to the judgment of elected legislators, Rehnquist has most consistently practiced what he preaches.

Furthermore, if judicial activism is defined by a judge's willingness to strike down federal or state laws, then guess who two of the three most restrained justices are?

Liberals Ruth Bader Ginsberg and Steven Breyer.

Guess who two of the four most activist justices are?

Yup, Scalia and conservative co-firebrand Clarence Thomas.