President Obama has recently raised alarms about the supposed threat of conservative judicial activism — of Supreme Court majorities that would wrongly override democratic enactments and invent constitutional rights that advance conservative policy ends. But the alternative that he favors is liberal judicial activism: He has committed to appoint justices who will indulge their own subjective passions, their “deepest values” and “the depth and breadth of [their] empathy” in deciding what the Constitution means.
In his comments thanking Justice Stevens for his service on the court, Obama said that he would nominate someone who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” If the president genuinely cares about not having the voices of ordinary citizens drowned out, he would favor a third way, the path of judicial restraint. He would search for and select a nominee who would steadfastly defer to the political processes and leave in force democratic enactments unless they violate the clearly ascertained meaning of a constitutional provision.
A century ago, it was liberals who advocated judicial restraint and who opposed the freewheeling use of “substantive due process” to invalidate progressive economic and social legislation. Unfortunately, since the 1960s, most liberals have become aggressive advocates of the sort of lawless judicial activism epitomized by Roe v. Wade. Rulings like Roe poison American politics by removing contentious issues from the give-and-take compromise that the ordinary processes of representative government entail.*
Of the candidates being mentioned to fill the Stevens vacancy, the one who most clearly offers the promise of pursuing the path of judicial restraint is Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.
* This paragraph was omitted from the final published version as a result ofa last-minute cut to save space.