A primer on judicial restraint - inital thoughts

Bruce Murphy of Milwaukee Magazine thinks that he has the lowdown on Wisconsin Manufacturers & Commerce and, who knows, maybe he has. Murphy argues (with, it seems, not much evidence) that WMC supports Judge Annette Ziegler for Supreme Court because he expects her to be pro-business. He points out, properly, I think that "judicial restraint" and "pro-business" are not synonymous.

In fact, a fairly standard interpretation of American constitutional history is that an early paroxysm of judicial activism was "pro-business" with the Court striking down progressive and New Deal economic regulation without adequate constitutional justification in what is frequently known as the Lochner era.

Different people define restraint and activism in different ways and others deny that there is any such distinction. (Sometimes I wish we could use more precise terms.) In my view, however, what distinguishes "activism" from "restraint" (and the terms are admittedly relative) is not "anti-business v. pro-business" or even "liberal v. conservative." Rather the distinction turns on the extent to which a judge bases his decision on some external authority rooted in the consent of the governed, i.e., a statute or the constitution, interpreted in some way that makes it something other than whatever the judge wants it to be. As Chief Justice Roberts has said, a judge is like an umpire. A judge enforces the rules; she doesn't make them. This implies that the rules come from somewhere else and that they are sufficiently definite to be "applied" rather than "discovered."

It is for this reason that Murphy is wrong when he says that an argument that the a ban on same sex marriage violates the United States Constitution is not activist. He expresses disbelief that "an activist is someone who wants our laws and amendments to conform to our nation’s founding document .... This would tickle James Madison."

My guess is that James Madison would be more than "tickled" by the idea that the United States Constitution creates a right for two men to marry. "Nonplussed" might be more like it.

The reason that the argument that a same-sex marriage ban is unconstitutional is "activist" is that it is not fairly inferable from the constitution itself. It would either have to be based on some notion of "privacy" - a term that is not itself found in the document and that is not capable of principled definition drawn from the constitution - or in a novel interpretation of the equal protection clause. That novel interpretation would have to apply the clause in a way that its framers would have opposed (and yes they did intend that it be applied to blacks) or would have to adopt a form of garden variety equal protection review that would have no limiting principle and empower the court to strike down virtually any law it did not like.

Whatever you feel about same-sex marriage, the idea that a judge should find that it is compelled (or, for that matter, prohibited) by the United State Constitution is about as activist as you can get.

Whether WMC wants a "restrained" or "pro-business" justice is something I do not pretend to know and I am not going to express a judgment about any of the candidates running for the state supreme court. But in our current judicial environment (particularly in Wisconsin), activist decisions most often yield results that can be characterized as "liberal" or "anti-business." As I said, restraint does not have to equal conservative or pro-business and often, in our history, it has not. Still, it wouldn't be crazy for WMC to conclude that they are better off with a justice who has a philosophy of "restraint" than one who does not. Whether it has gotten it right is, I hope, one of the things that the campaign will explore.