One constant in American politics over the past few decades is that conservatives have consistently railed against “activist” judges who “legislate from the bench,” while claiming to favor judges who demonstrate “judicial restraint.” Now that we have decisions from the U.S. Supreme Court in the abortion (Dobbs) and guns (Bruen) cases, we can ask whether these holdings epitomize judicial activism or judicial restraint.
We do know that at their U.S. Senate confirmation hearings, all of the judges that formed the majority of six in those two cases said they were advocates of judicial restraint. In fact, Chief Justice Roberts famously referred to his role as a judge as calling “balls and strikes, and not to pitch or bat.” Justice Amy Coney Barrett’s remarks included: “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People.” Justice Neil Gorsuch said that judges “would make pretty rotten legislators.” And Justice Samuel Alito stated to the Federalist Society in 2006: “Life-tenured, appointed judges must exercise restraint in construing [the Constitution].”
Yet these six justices have also accused each other of judicial activism, most recently when Roberts, in his concurring opinion in the Dobbs case, stated that the other five justices went too far because they only needed to decide whether the Mississippi law prohibiting abortion after 15 weeks was constitutional and not decide upon Roe v. Wade’s constitutionality.
And Alito famously accused Gorsuch of judicial activism while dissenting in the Bostock case involving same-sex rights in 2020: “There is only one word for what the Court has done today: legislation… the Court … should own up to what it is doing.”
And while Alito’s majority opinion in the Dobbs case states that the issue of abortion should be returned to the electorate to decide, Justice Clarence Thomas’ majority opinion in Bruen does precisely the opposite, holding that the Second Amendment contains a citizen’s right – and not just a militia’s right – to bear arms outside the home. Thus, New York’s century-old law requiring a darned good reason to carry a gun should be tossed into history’s dustbin of laws declared to be unconstitutional.
But Thomas so ruled based upon an interpretation of the Second Amendment which was inconsistent with a prior Supreme Court holding, a dubious ruling at best. How dubious? Well, former Chief Justice Warren Burger – a conservative “law and order” justice appointed by President Richard Nixon – described such an interpretation of the Second Amendment as a huge “fraud,” propagated by a “special interest” group – the NRA – which was and is simply a trade organization of gun manufacturers with only one interest: selling more guns. New York City Mayor Eric Adams has since stated that the Bruen decision will turn his city and indeed the United States into “the wild, wild West.” Recall the episode of “All in the Family” in the 1970s in which Archie Bunker advanced his solution to rampant airplane hijackings: Airlines should just give each passenger a gun when they board the airplane, to be returned upon landing. How prescient Archie was.
So, what does that make the justices who gave us Dobbs and Bruen? Hypocrites? Liars? Activists? Of course, judges are people too, with biases and worldviews like the rest of us. But shouldn’t they also be forthright about those biases and worldviews, and not simply tell us they are only calling “balls and strikes”?
And is the Roberts court any different than the Warren court of the 50s and 60s, which issued such decisions as the school segregation-ending one in Brown v. Board of Education, and other landmark rulings? Wasn’t that judicial activism too?
Perhaps, although the Warren court typically expanded rights in favor of folks who had been wrongly discriminated against, as well as the indigent, those accused of crimes, and others typically not well-served by the legislative process. By contrast, the Roberts’ court has advanced, typically, the rights of corporations, property owners, the Federalist Society and others who are well-heeled (or well-funded).
But the main thing setting the Roberts court apart from the Warren court is the repeated assurances from the Roberts court’s justices – and their supporters – about being totally committed to the principle of judicial restraint. Seriously.
So this is where the Supreme Court is now. Will citizens accept this state of affairs at the court or energize and mobilize in response to these activist decisions? Will they refuse to elect politicians who appoint and support judges who say one thing about judicial restraint but do another?
Time will tell, starting this November.
Richard B. Ancowitz is counsel to Assemblywoman Helene Weinstein, D-Brooklyn, and a member of the bar of the U.S. Supreme Court.