Yesterday morning, I participated in a media conference call with Kellyanne Conway in which we rolled out my white paper on the Wisconsin Supreme Court and an opinion poll conducted by Kellyanne's firm, the polling company.
I fully appreciate that there may be a limited audience interested in a conversation about judicial philosophy (as opposed to which candidate is or is not the incarnation of one form of evil or the other), but I think it is important and is most decidedly not, as my Backstory colleague, Jim Rowen, suggests in a comment to an earlier post, "something of a false issue." He could not be more mistaken.
Jim thinks that activism is in the "eye of beholder" and there are certainly reasonable people who disagree about when the line between enforcing and creating law in a way properly left to the legislature has been crossed. That people disagree about what whether some particular thing falls within a category does not mean that the category does not exist or is meaningless.
Jim directs our attention to a recent panel decision of the D.C. Circuit court of appeals in a case called Parker v. District of Columbia. The decision struck down D.C.'s ban on private gun ownership. Jim says "[c]onservatives hailed the decision because they disagree with gun control - - but I'm guessing that if a court struck down a law or ruling as equally dear to the right, conservatives would be all over that court for...activism! "
As John McLaughlin might say "WRONG!" The Parker court did interpret the Second Amendment to create an individual - as opposed to a collective - right to bear arms. Most courts (all but one circuit, really) have gone the other way. Parker may be wrong, but it is not "activist" (to oversimplify for a moment) in that it does not disregard a clear constitution command or create extra-constitutional restrictions on the political branches. Parker is rooted in constitutional language providing that "a well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
This language must mean something and deciding what it means is what courts do. Perhaps the prefatory reference to a militia ought to be read as a restriction upon, rather than an explanation for, the right to keep and near arms (such that one only has such a right as part of an official militia). Maybe not. But the individual right found in Parker is rooted in constitutional text. It is not, like the abortion right in Roe, spun from ... well, nothing really. Not even whole cloth.
We can argue about Parker, but I don't think it implicates the "activism/restraint" debate. Although restraintist judges might be expected to evince a healthy respect for precedent, this does not mean that error, once made, is forever immune from correction.