George Will Redefines The Conservative Judicial Philosophy

by Jonathan Chait | December 6, 2010

George Will's Sunday column has introduced one of the finest semantic innovations in modern political propaganda. For decades, conservatives have defined their judicial philosophy as minimalism. The liberal postwar courts had expanded social rights by aggressively interpreting the Constitution, and conservatives painted this, not altogether incorrectly, as using courts to win victories that could not be won at the ballot box. In the last couple decades, though, conservatives have increasingly been tempted to use their newfound judicial majorities to do the same.

The two conservative impulses sat side by side a bit uncomfortably, like a moralizing televangelist who was conducting an affair on the side. What the movement needed was some way to reconcile the two beliefs. Now Will has supplied it:

"There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means.

Do you understand the distinction? An activist judge is one who is overturning laws that conservatives approve of. An engaged judge is completely different -- he's overturning laws that liberals approve of. There's no comparison between the two.

Fourth Branch has more.

Source URL: http://www.newrepublic.com//blog/jonathan-chait/79654/george-will-redefines-the-conservative-judicial-philosophy