The Compatibility of Conservatism and Judicial Activism

A typical complaint about the Warren Court, a well-known liberal court responsible for a great deal of "liberal" rulings, was that it was guilty of "judicial activism." According to many conservatives, judges should merely review the law, not make it. Judges rightly have a passive attitude, respecting precedent and not attempting to undemocratically impose their will on others. The liberal justices were therefore poor judges, activists, that is, not real judges.

Toobin's complaint is that the conservative justices are presently dishonest. They pretend to be conservatives in the sense that they oppose judicial activism. But in fact they act as Republican Party partisans, imposing their view of the law on the nation as a whole. The Roberts Court is a supposed contradiction in terms, namely a conservative activist court. But Toobin points out that a conservative activist court is not a necessary...