Misunderstanding judicial restraint

Adam Cohen writes an op-ed in the New York Times criticizing the Roberts Court as activist. He says this is so because the court held some actions of state and federal officials to be unconstitutional. Ilya Somin, at the Volokh Conspiracy, writes (accurately, I think) that Cohen's piece is "riddled with flaws and misrepresentations." That's pretty much what you get from Cohen on this stuff.

Somin's point, which even I have made elsewhere, is that, as most people use the term today, "judicial restraint" is not synonymous with upholding the decisions of other branches of government or following precedent. What the restraintist judge declines to do, according to most proponents of "restraint," is to read the law in ways that maximize his or her opportunity to impose his or her own notions of what is good or those that might flow from some extra-textual philosophy of governance.

While this will generally result in a greater amount of deference to democratic decisionmakers and fewer radical departures from settled law, that is not always the case.

Ann Althouse doesn't really take sides but enjoys the fight. She does make the point that judicial restraint is a term that lawyers, judges and scholars embrace, while no one wants to be thought of as activist. But she seems to think that too much has come to be included under the banner of restraint:

Restraint has to do with deferring to the choices of democratic decisionmakers. This can favor either liberal or conservatives causes, and the price is paid by those who have preferences that lost in the political process -- often, but not always, the preferences of the majority. This is a respectable type of jurisprudence, and some judges and scholars do embrace it.This restraint is not the same thing as avoiding activism.

Judges who say they will do what the law requires and only what the law requires are not promising to use restraint.

In one sense, of course, her last sentence is right. A textualist like Scalia who believes that the First Amendment clearly prohibits laws restricting the freedom of speech and that the Fourteenth Amendment clearly prohibits government decisions based on race will not "restrain" himself from striking down laws that violate these commands. If activism is defined as overturning laws and restraint as not doing so, he is not a restraintist.

But although these terms could be used in that way, they mostly are not. Somin puts it well:

Cohen's argument equates conservative criticism of "judicial activism" with criticism of striking down laws enacted by elected officials. That may be Cohen's view, but it is not shared by the vast majority of conservative jurists and legal scholars. For decades, legal conservatives have criticized the Court for failing to strike down what they see as unconstitutional laws, particularly in the areas of federalism, property rights and (more recently) free speech. Most conservative (and even more so libertarian) jurists would agree that failure to strike down unconstitutional laws is no less a departure from the proper judicial role than judicial overruling of laws that the Constitution permits.

What a restraintist judge promises to refrain from is the imposition of her own values in the absence of any authoritative command to do so. Such a judge might, for example, believe that deference to a plan that assigns students to schools based on the color of their skin in the face of a command for racial equality in the 14th is "activist." It constitutionalizes extratextual theories about what does and does not promote racial harmony or what does or does not enhance student performance in the face of a unqualified command to be colorblind.

You can argue that this is an erroneous reading of the 14th, but restraintist judges will want to say that the argument is about what the text means and that the text is not so imprecise to completely evade comprehension. Thus, as Somin points out, the Supreme Court did not hold in the Seattle and Louisville cases that, as Cohen implies, there is a right for white students "not to be made to go to school with black children."