During the confirmation hearing of Amy Coney Barrett for the Supreme Court, Americans’ approval of her rose considerably, both among Republican and Democrat voters. Many people, especially on the left, may have been surprised to hear her no-nonsense by-the-book legal philosophy. Wasn’t she supposed to be a conservative hack?
The Media Narrative
The narrative pushed by the media is that Republicans and Democrats both want political activism in the Supreme Court, conservative and progressive justices, respectively. The truth is that, for decades, Democrats have appointed activist progressive judges. In contrast, the Republicans have tried to select law-abiding ones.
Being law-abiding is not the same as being conservative. If conservatives were serious about pushing political activism in the same way as the left, here are a few examples of what could be enacted:
- A federal ban on abortion
- A federal ban on prostitution, pornography, alcohol, drugs, and gay marriage
- A federal ban on blasphemy
- Federally mandated school prayer and Bible teaching
- Federally mandated decency dress code
If your reaction is that this list sounds much like sharia law, the Iranian Guardian Council, and moral policing, you would be correct. That’s what conservative judicial activism would look like: pushing their values onto the entire American population through arbitrary redefinitions of the law.
This narrative is also what most Americans believe about conservative Supreme Court appointments due to the false media narrative. The truth is that they are conservative only in the legal sense of conserving the law. By this standard, any form of judicial activism is criminal behavior and anti-conservative.
No conservative justice would ever do any of the above examples, including a federal abortion ban. Even though a case can be made for identifying abortion as murder, it is not mentioned in the Constitution. Therefore, a law-abiding originalist or textualist justice would defer this question to the states and not issue a federal ban.
Judicial Activism
By contrast, activist justices would reinterpret the law by blatantly redefining words. Consider the First Amendment. It says that Congress shall make no law “abridging the freedom of speech.”
An originalist like Amy Coney Barrett would look at the usage of the words as they were originally understood by the public when the law was made and apply this meaning in interpreting the law.
Activists could instead redefine “speech” to include politically motivated looting, violence, or tearing down statues, thereby protecting rioting under the new and “improved” First Amendment.
They could also redefine “hurtful language” toward protected groups as violence. By this redefinition, the First Amendment would mandate social media to take down any conservative opinion or label a display of the U.S. or Thin-Blue-Line flags as “hate speech” in violation of their new Orwellian definition of free speech.
A similar activist approach to the Second Amendment could be used to ban guns.
Far-Fetched?
Before 2020, the above examples would have seemed far-fetched, but much of these contorted redefinitions have already been made at the local level. Far more ominously, the Democrats have now started using this Orwellian technique in redefining well-established terms such as “court-packing.”
Since President Franklin D. Roosevelt, this had always meant increasing the Supreme Court’s number of seats. Today, Democrats and the media increasingly say that the Republicans have been “packing the court” with conservative judges, thereby redefining it to mean filling vacant seats.
They have also started referring to increasing the number of activist judges to undermine the rule of law as “depoliticizing the courts.”
In a fair and honest world, originalists would be referred to as politically neutral judges, not conservative. There is nothing activist about obeying the law.
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