Conservatives frequently say we must appoint “conservative judges” who don’t make law, but interpret the law.  This sounds great, but a close analysis shows why it doesn’t work out the way we want.

We believe that a judge who is “conservative” will rule in a manner that is “politically conservative.”  But judges who are conservative do not predictably rule in a “politically conservative” manner.  Conservative judges usually believe in “stare decisis,” which means to follow legal precedent, and believe in deference to the legislative process.  This means they believe that the legislature make the laws, and it is not the job of judges to second guess the legislature.

Judges such as Holmes, Bork, and Frankfurter said it doesn’t matter if the law is dumb or stupid.  They will reverse only if the law violates a specific right in the Constitution.  They believe that if a law can be found constitutional under any argument, then it should be ruled constitutional.  This is the rationale of Justice Roberts to uphold Obamacare.  He ruled that Congress didn’t have authority under the commerce clause but had authority under the power to tax to rule that the individual mandate is constitutional.

Following the ratification of the 14^th Amendment, the Supreme Court ruled as unconstitutional various laws, such as minimum wage, minimum hours, and other “social welfare” legislation as violating the liberty of contract.  The progressives/liberals of the day attacked the Court, saying the Court should defer to the legislatures and not substitute its judgment for the legislature.  This was because the laws that were invalidated were laws supported by the “progressives/liberals.”

Justice Holmes was the leader of the “judicial deference” school of legal thought.  For example,  Holmes upheld a state law allowing for the sterilization of mentally challenged women and upheld the convictions during WWI of those who criticized the war.  Holmes was appointed by Teddy Roosevelt, who wanted a reliable vote to upheld government legislation.

Now it is conservatives who say judges should defer to the legislatures.  This is because the Supreme Court has ruled unconstitutional state laws on abortion, marriage, sodomy, contraceptives, and other social issues where conservatives supported the laws.

Now progressives/liberals want judges who will not defer to the legislatures when the law at issue deals with economic activity, such as Obamacare, but want judicial activism when the law at issue deals with social issues of abortion, marriage, etc.

This distinction in how the Court reviews laws dealing with constitutional issues came about in the famous footnote 4 in Carolene.  The Court stated that it would analyze economic legislation under a “rational” test but would apply “strict scrutiny” to laws affecting constitutional rights.  In other words, it would uphold most laws regulating economic activity but would substitute its judgment for laws affecting constitutional rights.

The battle then developed to what constitutional rights are.  There are specific rights under the Bill of Rights, and then there are other rights that the Court has discovered under the 14^th Amendment, such as the abortion, gay marriage, and privacy rights.

Today, judges who are progressive/liberal favor judicial deference for laws that deal with regulation of the economy.  This supports the growth of government and the regulatory bureaucratic state.

But conservatives who want judges who are not “activists” unwittingly are helping the progressives in expanding government power.

The Court should treat all constitutional rights, economic and personal non-economic, the same to require the government to prove the necessity and reasonableness of the law, and strictly scrutinize the government’s reasons. 

The policy of deference to the legislature has contributed to the explosive growth in the federal government’s power because the Court has deferred to Congress, allowing laws that regulate all economic activity.