Volokh Conspiracy: Rand Paul: Im a judicial activist.
In a recent speech, Senator Rand Paul urged an audience of conservatives to embrace judicial activism. According to Paul, judicial activism is a good thing because it advances liberty and furthers conservative goals. Legislatures do bad things, Paul argues, and judicial activism is helpful to stop that: Judicial activism can overturn liberal laws such as Obamacare and the employment laws at issue in Lochner v. New York.
According to Senator Paul, there is a role for the Supreme Court to mete out justice. As a result, he considers himself a judicial activist in debates over Locher, the New Deal in the 1930s, Brown in the 1950s, Griswold in the 1960s, and the challenge to Obamacare more recently. Paul suggests that Roe v. Wade is a tougher case for him because abortion involves a clash of rights. Senator Paul also endorses co-blogger Randy Barnetts idea of replacing the presumption of constitutionality with a presumption of unconstitutionality (what Barnett calls the presumption of liberty). According to Paul, he doesnt like judicial legislation but he does want judges defending his freedom.
Three brief thoughts.
First, I noted here, the phrase judicial activism can have several different meanings. I gather Senator Paul is mostly assuming meanings #2 and #5 from my prior list, covering the expanding the power of the courts sense of activism and the striking down legislation sense of activism.
Second, Senator Paul is surely right that judicial activism (at least in the #2 and #5 sense) will favor libertarian policies. In our legal system, the usual remedy for finding a constitutional violation is legal subtraction. The court generally will strike down the law or enjoin the government practice. As a result, its natural for libertarians to want judges to read constitutional protections broadly. The more judges read the constitution broadly, the more they will strike down laws; and the more they strike down laws, the fewer laws will be on the books.
Third, kudos to Senator Paul for being candid and interesting, especially when facing a relatively hostile crowd of conservatives (rather than libertarians). I wasnt convinced, as you might guess. As regular readers know, Im the VCs in-house advocate of judicial restraint. But I thought it was great that Senator Paul took on a big idea and made his case.
Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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Volokh Conspiracy: Rand Paul: Im a judicial activist.