On Monday, April 28, the Supreme Court of Crawford v. Marion County Election Board allowed Indiana to continue to require voters to produce government ID before they vote. The reasoning of the plurality was notably non-constitutional. So, too, were some of the conservative endorsements of the Bush Court’s handiwork.
The editors of National Review Online, in an editorial posted April 29, evaluated matters thus:
The decision in Crawford … underscores the importance of nominating conservative justices who understand the importance of judicial restraint. More than half of the states have passed laws requiring the presentation of some form of identification in order to vote. It is easy to imagine a more activist court overturning those democratically enacted laws based on a few liberal groups’ spurious claims of democracy denied.
While they were right to approve of Crawford, the editors of conservatism’s flagship publication displayed notable confusion about the issues at stake in today’s judicial culture.
"Judicial restraint," in and of itself, is not a virtue. The idea of judicial restraint first gained currency in legal academia in the first third of the twentieth century. Then, it was the slogan of such as Felix Frankfurter, an Ivy League law professor and high ACLU mucky-muck who wanted conservative activists to cease imposing their laissez-faire vision on America.
The laissez-faire Supreme Court, in particular, was partly in the right and partly in the wrong. In a series of cases, the Court of the late nineteenth and early twentieth century disallowed wage and labor legislation passed by both state and federal legislatures. The Court was right to do this in regard to the congressional statutes, because, as the justices said, the Tenth Amendment represented the constitutional principle of federalism — that control of those matters had been reserved to the states.
Frankfurter and other devotes of "judicial restraint" in this context argued that democratic majorities generally deserved to have their way; in other words, they wanted both state and federal laws regulating the economy to be validated by the federal courts, despite the fact that the federal ones were clearly unconstitutional.
With the so-called "Revolution of 1937" (which, as Edward White has shown, was actually far more complicated than that), "judicial restraint" had its day. In other words, the Court got out of the business of keeping the Congress from grabbing at power that had been reserved to the states.
The Revolution of 1937 did not mark the first occasion on which the Supreme Court omitted to enforce the line between state and federal legislative authority. Rather, in the 1819 case of McCulloch v. Maryland, the Court allowed to stand a federal law incorporating the second Bank of the United States. James Madison, one of the Constitution’s chief draftsmen, wrote in response that if the people had known in 1787—88 that the Court would read the Constitution as it had in McCulloch, they would never have ratified the Constitution.
One of National Review Online’s legal bloggers has written at great length in celebration of Chief Justice John Marshall’s performance in McCulloch. Although his academic writings are obscure, his perch at NRO gives him great potential influence. Alas, it seems that his anti-Madisonian endorsement of "judicial restraint" may sway unsuspecting conservatives away from originalism and toward support of the the position on this question that has always been favored, from John Marshall through Felix Frankfurter to the present, by devotes of unfettered congressional majorities.
The NRO blogger is not alone. Some conservative commentators have been led by the federal courts’ career of judicial legislation these past 70+ years to the forthright conclusion that democratic majorities should always have their way. What they favor is not constitutional government, however, but the absence of constitutional restraint. Proponents of constitutionalism hold that federal courts should not be bound by the notion of "judicial restraint," but should instead be in the business of doing what federal judges swear to do: uphold the Constitution. If that means they must be active strikers-down of unconstitutional statutes, so be it. Judicial activism is only lamentable when the judges actively ignore the Constitution.
