The current conservative judicial mind and the idea of restraint

I must be brief. I am off to Omaha early this morning for a fun-filled day of criminal law. I will hold eight sentencing hearings. All of the defendants are likely to receive prison time.

As a federal trial judge, I read tea leaves and follow precedent. Almost never am I called on to apply my own theory of Constitutional adjudication. That said, it is helpful to understand what the “big boys and girls” are thinking. That is particularly true of the “big boys and girls” who are conservatives. After all, they tend to dominate the current makeup of the Supreme Court and the Courts of Appeal. In particular, the idea of “judicial restraint” that allegedly animates so many “conservative” decisions is a notion that is, at least for me, desperately in need of clarification.

With that in mind, I heartily recommend Joel Alicea’s* short essay entitled Real Judicial Restraint in the Fall 2013 issue of National Affairs. It is a readable and cogent explanation of the separate concepts of “judicial restraint” that have moved, are now moving or should move judicial conservatives. Alicea has his favorite, but it is the taxonomy that I find most helpful. The essay is well worth reading if you desire to gather intelligence on the current conservative judicial mind and the notion of restraint.


*The author is a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. His piece receives praise from Ed Whelan the prominent conservative legal commentator.

PS As is so often the case, I give thanks to Howard Bashman and How Appealing for the tip.

5 responses

  1. Fascinating and thoughtful piece — even though I doubt my personal politics align very much with the author’s, this is probably the most intelligent article I’ve ever read on the interplay of judicial restraint, judicial activism, and originalism. The author lays out very neatly the complexities of these ideas that have always made it difficult to discuss, especially because people tend to discuss “activism” as the thing their opponents do and “restraint” as the thing their side does without thinking carefully about what these terms mean and what activist or restrained activity really constitutes. The only thing more frustrating that seeing commentators in general bleat about judicial activism when they don’t like a decision is seeing people on what one thinks of as on one’s own side of the ideological spectrum doing it.

    I have a very clear memory of my constitutional law professor explaining that essentially this set of complexities, difficult to explain from a doctrinal point of view, is why he gave up teaching constitutional law for about a decade. I can’t say I blame him.

  2. Chocolatetort,

    My thoughts almost exactly.

    One other thing. Intellectual clarity coupled with a dollop of intellectual honesty on a subject like judicial restraint is rare. What is most interesting to me is that a young person (I presume he is a young as he is a law clerk) wrote this incisive piece. He has a very bright future, and, from afar,that makes me happy for the profession.

    All the best.


  3. There is much—most—with which to agree in Alicea’s essay; I have just a couple of (longwinded) comments.

    This 18th Century Liberal/modern Conservative can’t argue the fine distinctions of originalism vs textualism; the two terms are too much arbitrary points on an analog spectrum for any meaningful distinction between them in a larger context—except that I’ll offer two over-simplified summaries of the two terms from my ignorant perspective, and this quibble forms one of the main thrusts of my comment. The other point of my comment is a small remark on judicial restraint vs activism, generally.

    Originalism, as I see it, works to apply what the Framers of the Constitution thought they were writing when they wrote the Constitution, including the histories of their ideas; what the people were thinking about what the Framers wrote when those folks elected their ratification convention delegates, along with the histories of the development of their thinking during the public debates over ratification; and the same vis-à-vis the convention delegates as they debated in convention and then cast their votes.

    Textualism, on the other hand (say I), centers on what the Constitution says—the words and clauses, the Articles, etc that are the actual Constitution, actually ratified. If there are questions concerning the meanings of particular words and phrases, it’s easy enough to consult Johnson’s Dictionary, 10th ed (1792) and/or Sheridan’s Dictionary, 2nd ed (1789), both contemporaneous enough to settle the questions (and each a carbon copy of the other, consistent with the attitude toward copyright laws extant at the time. Further, earlier editions are more contemporaneous, yet; these two are simply readily available).

    With those terms of reference present, it’s useful to mention an aspect of restraint/activism not discussed by Alicea: these concepts are more frangible than just “my judge is restrained; yours is activist.” And they mean more than just Bork’s (or Thayer’s, or…) take on them. Like the concepts of “conservative” and “liberal,” these concepts, in the absence of careful consideration of their meaning (a microcosm of the thinking about the Constitution, perhaps), evolve over time and even swap roles, and so they have little meaning without occasional explicit visits to their definition. (An aside: a current liberal and a modern Conservative (not to be confused with a current conservative) are equally conservative, despite the evolution of these terms’ meanings, but that’s a different story.)

    My quibble, then, with Alicea, is this: while agreeing with almost all of his point about the need for judicial restraint—and a need for a clearer understanding of what “judicial restraint” means (which perforce then adequately defines “judicial activism”), almost all of which I agree with—I hold that originalism is not the optimal way in which to achieve a proper restraint. There’s too much reliance on mind-reading—that attempt to divine thoughts from histories. And this in turn relies increasingly on increasingly fading and incomplete histories. Rather, judges should consider not what they think the Framers, et al., were thinking, but they should see in the actual words what the Constitution (and legislative law that might come before them) actually says, and they should limit their divinations to that—they should be textualists, and not originalists. The words are there before them, and the relevant dictionaries readily available. Even, as Alicea intimates, the clauses in the Constitution and the principles embodied in them are technologically agnostic. The “right of the people to be secure in their persons, houses, papers, and effects” has nothing to say about “except for wireless handsets” or “other than GPS trackers affixed to cars,” for instance. “Effects,” if not deliberately vague (as it may be), certainly is usefully so.

    Next, just as Alicea shows that other forms of “interpretation” lead down one side or the other of the slippery slope of deviation from the Constitution, the necessarily hazy nature of originalism is the first step onto that slope. It provides the first opportunity for allowing interpretation of the Constitution to begin to dominate judicial deliberations, rather than the application of the Constitution.

    The timelessness of these terms as here defined thus serves to mitigate the effects of the evolving use of originalism that Alicea describes, and pins judges to the text of the Constitution—which itself does not change over time, but changes only when its owners, we the People, see fit to change it.

    Regarding the dangers of judicial activism (and thus the protections of restraint), I offer the following.

    The immediately practical dangers are illustrated by CJ Taft’s remarks in Bailey v Drexel—”The good sought in unconstitutional legislation…”—and in Justice McReynolds’ dissent in NLRB v Laughlin Steel—”We are told that Congress may protect the ‘stream of commerce’….”)

    In more theoretical terms, the damage that activism does is done directly to our Constitution on a number of planes, vis., Constitutional amendments and legislation from the bench through creative interpretation of various clauses (what Justice Ginsburg and others have referred to as a “living constitution”). These constitute, among other things, violations of the constitutionally mandated separation of powers and a usurpation of the people’s authority as the sole source of changes to the terms of our social compact.

    Through that, judicial activism attacks the very concept of the rule of law by which we try to govern ourselves, devolving us to rule by (judge-made) law—regardless of the intent of highly intelligent and honorable people like judges. Many have said that the Constitution is not a suicide pact, and they use that as another justification for judicial activism. Indeed, the Constitution is not a suicide pact. But deviation from it via the judicial bench is suicide.

    As a not-too-distant aside, the (Ginsbergian, for instance) concept of a constitution living through a judge’s “updating” of constitutional interpretations to meet the needs of “actual people here and now” wholly elides the fact that the Constitution does indeed live, quite vibrantly, through Article V. This is both illustrated and demonstrated by the fact that it has been changed, by the people ourselves, some 17 times (beyond the Bill of Rights, which amendments were passed to fulfill a commitment made to get ratification). That works out to roughly once every 13 years, or more than once per generation, albeit the changes come in fits and clusters. Plainly, the Constitution as legitimately amended—by us people—thoroughly reflects the requirements of the “actual people of the here and now.” And if, moreover, a situation arises today that was unanticipated by the Framers and ratifiers of 200+ years ago and so the Constitution is ill-suited to handle it, Article V supplies the defect, not judges.

    Finally, as Alicea notes

    True restraint acknowledges that judicial authority ends at the limits of original meaning. Real judicial humility recognizes that a judge’s primary obligation is to the will of the popular sovereign as manifested in the Constitution’s original meaning, and that failing to enforce that will is an act of judicial abdication or, worse, hubris. Judges owe the people their best judgment about the original meaning of the Constitution and its application to particular cases—nothing more and nothing less.

    To repeat, my primary beef, then, is on the attempted use of originalism rather than textualism. Either is vastly preferable and far more protective of the (small-c) constitution of our Republic and of our individual liberties and duties—the reason we moved to form “a more perfect Union” and wrote and ratified (and legitimately modified) this particular Constitution in order to animate that Union. And of course, as I noted above, originalism and textualism are points on a continuum. Better, in the end say I, to center judicial activity—judicial restraint, eschewing altogether activism—on textualism with a smidge of originalism, than to center it on originalism with a skosh of textualism.

    (For those interested in more of my views of judicial restraint and activism (all one or two of you), those views can be found (shameless plug) here, here, and here.)

    Eric Hines

  4. Eric,

    As I have said before, you would make a heck of a lawyer. You’re dissection and explication of originalism and textualism is particularly good.

    Thanks for taking the time to provide your detailed comment. All the best.


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