'Judicial restraint' as a talking point

by Eyck Freymann

Kakofonous makes a very good point in response to my previous post on judicial activism. He cites the studies showing that conservative judges are more likely to overturn precedent than their liberal colleagues--effectively destroying the myth of the liberal 'activist judge'--but goes on to conclude that the correct question should be whether a judge is true to the spirit of the law and the times. He also notes that the philosophy of judicial restraint is not hollow.

To respond, I would clarify my previous statement:

Conservatives can never be 'activist judges,' even when they overturn established precedent and wreak havoc in the scientific community. It quickly becomes clear that the phrase doesn't actually mean anything at all, doesn't stand for any pure ideology within the GOP. The term 'activist judge' is as hollow as the philosophy it depicts.

My conclusion was not that the philosophy was meaningless in itself, but that it held no special value to the GOP. 'Judicial restraint' was an excuse to oppose liberal nominees and blast progressive decisions. Conservatives used the tactic cynically and selectively, only raising the question when it helped them, and ignoring it when it was not. Ultimately, the Republican party was not interested in judges not overreaching. They were interested in decisions in their favor. That's all there is to the clamoring for judicial restraint. If the tactic isn't hollow, it's certainly transparent.