What an "Activist" Conservative Justice Would Look Like

Don't be misled by Democrat name-calling and projection.

Democrats don’t like the US constitution. Oh they’ll lean on it when they think it’s convenient to their cause du jour, but the moment the constitution gets in the way of the progressive agenda - or “democracy” as they like to say - they’ll undermine it in a fetal heartbeat. And anytime conservative jurists get in the way of their activist progressive agenda, they decry this as “conservative judicial activism”.

As they often do when they can’t make a legitimate argument, Democrats simply change the meaning of a term. In this case, the word “activist” is their chosen target. This is Humpty Dumptyism.

"When I use a word it means just what I choose it to mean." - Humpty Dumpty from Lewis Carroll’s Through the Looking Glass

The term “activist” when applied to the judiciary means only one thing and has always meant that one thing. It describes the willingness of a jurist to insert that jurist’s personal opinion into what the law plainly says. In the case of the US constitution, we have not only the language within the constitution but the extemporaneous writings of the authors themselves to provide unequivocal context and meaning. The Founders didn’t pull these words out of thin air. They labored, debated and wrote multiple drafts, polling each other along the way to determine precisely the language that was agreeable. And they recorded all of these proceedings. So we know what they fully intended when they wrote the constitution. This isn’t like trying to decipher ancient cave paintings or hieroglyphics. They left us all the records.

And not just on what the constitution plainly says, but what it does not say. Nowhere is “a right to privacy” mentioned in the document, nor in any of the supporting documents. It’s not because the word didn’t exist - the Founders just didn’t go there. They defined and enumerated constrained federal branch powers and then, with the Bill of Rights, defined specific individual rights - leaving all other such matters to the States, the People and their elected Representatives. So if you want a “right to privacy” enshrined within the constitution, you need to amend it. You can’t just invent it or assume it.

That’s activism. Substituting one’s personal opinion for how matters ought to be versus the way the constitution plainly reads.

So when we grill a prospective Supreme Court jurist for “temperament” this is precisely what we’re trying to divine. Will this jurist treat the constitution as a “living document”, insert their opinion, obliviate original intent, to invent a new meaning to what was previously understood and accepted? That’s a judicial activist.

Democrats would have you believe that any decision they don’t like is a result of “conservative activism” - moral equivalence, or “you’re just the same as we are”. To Democrats, any change in “the law” as it is currently in play, is “activist”. So overturning any previous decision or signaling a change to how the court has previously handled such matters - they consider that “activism”.

But that’s simply Humpty Dumptyism. Supreme Court justices aren’t duty-bound to honor “the law” as it is currently in play. Their role is to defend and apply the constitution as written on cases before them with only passing regard to precedent. If the precedent got it wrong on the constitutional merits, that’s not “activist” - it’s a restoration of the constitutional intent.

Historically, a great many written activist majority opinions and dissents ramble on about the degree to which a change would be disruptive to current practice or state of play of the law. (I’m looking right at you John Roberts) Why would social disruption matter to a Supreme Court justice? This is nothing more than an emotional plea, not grounded in the constitution. Sure, sending the issue of abortion back to the states will be disruptive. Some (few) people may be disproportionately affected in this decision. But that’s for the People to deal with, not the court.

Now none of this is to say “conservative activist” is an oxymoron - it isn’t. But we just haven’t seen conservative activism like we do progressive activism. And the reason is, it just doesn’t exist. They’re theoretically possible, of course, but I can’t honestly think of a single one in my lifetime. Conservative opinion has, in my lifetime, consisted of defending and preserving the constitution’s original meaning.

Perhaps a simple line diagram will help our Democrat friends understand the concept.

See what I mean when I say we just don’t see “conservative activists”? What Democrats decry as “conservative activism” is really just constructionists - that is, proper jurists - performing their constitutionally restrained role. Now admittedly this is a very simplistic diagram and only applies to specific cases where federal control is not mentioned, not authorized, within the constitution - and where a plain reading of Article III constrains the court’s authority. I can’t stretch this to cover free speech or firearms rights - which are defined within the constitution.

What would a “conservative Second Amendment activist” even look like? Reading Thomas’ Bruen decision, the court is not “inventing” a right to “bear” arms - it is simply stating that if one cannot “bear” arms outside the home, then it is, consistent with the Heller decision, “no constitutional guarantee at all”. No serious reading of the plain text of the Second Amendment would constrain that right “within the home” and it is not “activist” to rule as such. How would one get a legally purchased firearm home in the first place? How could one legally transport a firearm to a range for practice? Having a firearm at home does a citizen no good in a dark parking garage if the state has arbitrarily and capriciously decided you may not have it on your person.

But you just know the Democrats harbor a great fear of a genuine conservative activist. When they interrogate Republican court nominees, it is obviously the constructionist that is the Great Boogeyman they think they’re exposing. They rightfully think the Federalist Society is their opposition - to activism.

In my lifetime there has ever only been progressive activists. These justices are not worthy of the title. In fact, if there existed the political wherewithal, they should be impeached and removed from the court. On what evidence? Just read their opinions and the opinions they’ve concurred on. They read like they were written in crayon, full of sentiment and emotion without an iota of constitutional merit. They don’t just get “the law” wrong - they invent the law as they go. That’s not the constitutionally constrained role of the court. They really need to be removed.

Why? Because there is literally no check on Supreme Court judicial activism. There is no appeal to a Supreme Court decision and it overrides all other law the Congress may pass, the States and the People may desire or the Executive may enforce. They are not accountable beyond themselves - except for impeachment. And right now we have two justices for sure (Kagan and Sotomayor) that are unmistakably activist. Possibly Jackson will follow that path, in keeping with Democrat appointees, though we’ll reserve judgment until we see opinions from her. Chief Justice Roberts has been a huge disappointment, demonstrating a willingness to give the activists half a loaf on nearly every decision and shamelessly worrying about “disruption”, as if that’s the court’s concern and not the legislature.

The Democrats have used activists to weaponize the courts to achieve outcomes by judicial fiat which they could never have convinced the people, states or legislatures to consent to. Thankfully this Supreme Court has signaled an end to activism. Choosing to no longer support activism and its unconstrained expansion of federal powers and “boutique rights” is not a form of activism itself. It is anti-activism or constructionism - consistent with the limits set forth in Article III of the constitution.

We are grateful for the five and a half constructionists we have, but the Senate must preserve the court going forward. Democrats will continue to nominate activists. Senate Republicans need to constrain the court and provide consent only to judges with a demonstrated willingness to act within the constitution.