Judicial ReEngineering

2001]
PROPER JUDICIAL ACTIVISM
baby out with the bath water. The contributors to the First Things
debate decry the evils of judicial activism, but they enthusiastically
support the idea of natural law.210 As we saw in Part III, as well as in
Part I while defining judicial activism, natural law is open to the same
abuses that judicial activism engenders. In fact, several of the decisions
about which First Things complains, such as Roe, ground their opinions
in a kind of natural law jurisprudence. The point here is not that the
editors of First Things must either support Roe v. Wade or renounce
natural law - clearly their version of natural law can be different from
the Court's in Roe; the point is to understand that judging inherently
involves the kinds of problems that the editors declare represent the
"end of democracy." The solution to those problems is not to declare the
system broken, but to demand adherence to true fidelity to that system
(i.e., the Constitution). And it is perfectly within the power of the People
to demand this, because, as we have learned, the power of the Supreme
Court is wholly dependent on its legitimacy. 21 '
Obviously, several other theories of constitutional jurisprudence
exist that have not been addressed. Only those that speak most directly
to the position being advocated in this article have been rejoined.
Structural activism is but one piece of the constitutional fabric, but it is
a very important piece. It is time for advocates of both jurisprudential
activism and judicial restraint to consider its validity.
Having preached the virtues of judicial restraint for several
generations, conservatives will have to reevaluate their position. As
they did in the late 1930's, liberals and conservatives in the late 1990's
will debate about whether the courts or the political process are better
equipped to police the boundaries of federalism and the separation of
powers. 212
210 Bork, Our Judicial Oligarchy, supra note 205, at 6 ("Among the most elementary
principles of Western Civilization is the truth that laws which violate the moral law are
null and void and must in conscience be disobeyed.").
211 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker, 6 J. PUB. L. 279, 285 (1957).
The fact is ... that the policy views dominant on the Court are never for
long out of line with the policy views dominant among the lawmaking
majorities of the United States. Consequently it would be most unrealistic
to suppose that the Court would, for more than a few years at most, stand
against any major alternatives sought by a lawmaking majority.
Id.
Of course, sadly this is part of the problem to begin with-that the
Court follows policy preferences at all, when it ought to be following the
Constitution. But the point here is that the Court can only get away with what
we let it get away with, given a certain amount of time.
212 Jeffrey Rosen, Nine Votes for Judicial Restraint, N.Y. TIMES, June 29, 1997, at
HeinOnline -- 14 Regent U. L. Rev. 177 2001-2002