Judicial Activism and Selective Incorporation

Republicans never miss an opportunity to proclaim their disgust for "judicial activism" or claim that judges should "strictly construe" the Constitution, but when you dip even slightly below the surface with respect most constitutional debates, those terms quickly become meaningless. There's no better example of this than the debate over the reach of the Second Amendment.

Lately, Republicans have been criticizing Sonia Sotomayor over her opinion in Maloney v. Cuomo, where she held that, under controlling Supreme Court precedent, the Second Amendment does not apply to state government. This line of criticism was severely undermined yesterday when two of the more well-known conservative judges in the country, Frank Easterbrook and Richard Posner of the Seventh Circuit, issued a ruling agreeing with Sotomayor.

Nevertheless, conservatives insist that Sotomayor's opinion was wrong. And not just wrong but somehow wrong in an "activist" way. As Robert Alt of the National Review puts it, Sotomayor's "grossly adequate treatment of claims makes clear that she was seeking to impose her own policy preferences under the pretext of restraint." That's a brilliantly unfalsifiable accusation, but the true comedy comes in the explanation:

[U]nlike Easterbrook, who may well have ruled contrary to his own personal policy preferences, Sotomayor’s ruling seems to have reinforced them. The question for those reading her Second Amendment case to divine whether she was actually acting with “restraint” or giving short-shrift to claims she disfavored is this: do you honestly believe that Sotomayor would have adhered to old, dismissed, and distinguishable precedent (i.e., precedent interpreting a different clause in the Constitution (Privileges and Immunities) than the claim (selective incorporation through the Due Process clause) raised before her), if the case involved something that evoked her “empathy,” like a question of race or gender? Her own statement that judges are not able to put aside their biases in most cases (and suggesting that it might be a disservice to the country for her to do so) would seem to answer that question.

Shorter Robert Alt: Sotomayor may have reached the exact same conclusion as conservative hero Frank Easterbrook, but her reason for doing so had nothing to do with the law and everything to do with her own activist liberal beliefs. I know this because I can read minds and because Obama once used the word "empathy" in describing the kind of judges he likes.

The further absurdity of this particular criticism is apparent when you look more closely at the legal position that Alt thinks should have prevailed. For those of you who haven't taken constitutional law, the Bill of Rights, as originally interpreted, only applied to the federal government, not the states. Today we take for granted that certain rights, such as the right to free speech under the First Amendment and the right against unreasonable searches and seizures under the Fourth Amendment restrict not only the federal government, but state governments as well. But that's a relatively recent legal development. Beginning in the 1920s, the Supreme Court began holding that various rights from the federal Constitution also applied to the states. The mechanism through which this "selective incorporation" is said to have occurred was the passage of the 14th Amendment in 1868, which prohibited the states from, among things, "depriv[ing] any person of life, liberty, or property, without due process of law." The Supreme Court has held that through this due process clause, some (but not all) of the rights contained in the Bill of Rights were "incorporated" vis-a-vis the states. The right to bear arms is not one of the rights that the Court has held to be incorporated.

So, to summarize, Alt believes that Sotomayor (and Easterbrook and Posner) should have disregarded controlling Supreme Court precedent on this issue and held that the due process clause of the 14th Amendment selectively incorporated an individual right to bear arms under the Second Amendment, thereby invalidating state gun control laws that have been on the books for a long, long time.

All things being equal, this is a defensible constitutional position, but it is beyond ludicrous to defend this position while in the same breath tossing around phrases like "judicial restraint" and "strict constructionism." There is nothing remotely "strict" about the construction of the Constitution underlying the selective incorporation doctrine and there is nothing remotely "restrained" about striking down laws that have been on the books and enforced for many decades.

This whole way of framing the debate over judicial philosophy is ridiculous and bears no relationship at all to the actual political fault lines on key constitutional questions.