What Judges Should Do

George Will writes:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Will has it wrong. There is no roving mandate for the Court to protect liberty (or income equality or anything else) from depredations of any sort. The Court — like all courts engaged in textual interpretation — has a single mandate, one consistent with democratic governance and with the structure of the Constitution: to divine the meaning and the intent of the Constitution and the statutes at issue in the cases that come before it.

As for the two cases Will cites, they weren’t really about deferring to other branches of the government at all. In both cases, what was at stake was the meaning of explicit restrictions on the government contained in the Constitution, specifically the Fifth Amendment Takings Clause and the First Amendment. It’s not the job of the Court to decide how much “deference” this or that law requires, but rather to ask: does the Constitution permit Congress or the states to do this? In Kelo, the Court seemingly read out of the Fifth Amendment the “public use” requirement for exercise of eminent domain (allowing the government to hand property from one private owner to another) and in Citizens United the Court robustly defended core political speech protected by the language of the First Amendment.

There is a great temptation to devise all sorts of rules and tests for justices. But conservatives go astray when they choose to devise shiny new rationales for judging. The tried and true is perfectly sufficient: interpret the text, treat all litigants impartially, and put aside political considerations.