Sunday, June 14, 2009

George Will Comes Clean, Demands "Judicial Activism"

Earlier this year, George Will wrote a column blasting the bailout as an unconstitutional delegation of legislative power to the president. Historically, the Supreme Court has been extremely reluctant to invalidate legislation as violating the "nondelegation doctrine." Furthermore, the Constitution clearly gives Congress power over the economy and the president the power to execute laws passed by Congress. Moreover, the bailout has received support during two sessions of Congress, from two presidents, and from two Secretaries of the Treasury. Consequently, after Will published his article, I described it as a demand for "judicial activism" from a conservative -- which seems to violate a sacred conservative principle. Nevertheless, Will has now come clean and made explicit his demand for an activist "conservative" Supreme Court.

See: More Judicial Activism Please.

Will is not the first conservative to demand judicial activism recently. Many conservatives, for example, have criticized certain rulings by Sonia Sotomayor, which closely follow the law, but reach outcomes that conservatives politically oppose.


Kansas City said...

It seems like you were taken in by the headline of hte column, which I don't think is writen by Will. In any event, you need to consider his words, which pretty clearly explain his position in logical terms and shows it is not exactly what you are contending:

"Controversy about the judiciary's proper role is again at a boil because of a Supreme Court vacancy, and conservatives are warning against "judicial activism." But the Chrysler and GM bailouts and bankruptcies are reasons for conservatives to rethink the usefulness of that phrase and to make some distinctions.

Of course courts should not make policy or invent rights not stipulated or implied by statutes or the Constitution's text. But courts have no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government, including by popularly elected, and popular, officials. Regarding Chrysler and GM, the executive branch is exercising powers it does not have under any statute or constitutional provision. At moments such as this, deference to the political branches constitutes dereliction of judicial duty.

Darren Lenard Hutchinson said...

KC -- Given that this is the second essay I have written on Will's analysis of the bailout, I have no reason to stop at a headline. Besides, he demands "activism" in the article itself.

The problem I have with Will's position (and I what I gather might be yours too) is that activism for conservative causes is fine and justifiable, but activism for liberal causes is a breach of judicial ethics. Notice the bias in his statement -- "Courts have NO NOBLER FUNCTION than that of actively definding [insert list of economic rights]." Why is that the most noble function of the judiciary?

Also, Will's analysis of the constitutioanl issues raised by the bailout is pretty flawed. Banks accept government money and the strings that come with it. That is not unconstitutional; nor is it a breach of property and contractual rights. If this were the case, then Will and other conservatives should oppose constraints placed on the receipt of "welfare" benefits and conditions placed on individuals living in public housing. Also, if you read my prior essay on the subject (linked in the article) you will see my argument that raises issues with his "very liberal" nondelegation analysis.

Even conservative justices would be hard pressed to find a constitutional violation in the bailout. I personally have a lot of problems with the bailout. None of them, however, relates to the constitution.

Kansas City said...

Will is a smart and, especially for a columnist, very honest guy. I think our obervations depend on the definitiion of "activism," which is an eye of the beholder sort of thing. I'm not knowledgeable about the constitutional issue. I doubt that the justices will get involved in such a political question, but it may prove to be very interesting.

liberal dissent said...

The only objective way to measure "activism" I know of is to look at how frequently a justice/judge will overturn a law passed by a democratically elected legislature. By that standard, Scalia and Thomas are the most activist according to Lindquist and Cross' study on the issue.

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