From the WSJ Opinion Archives
ELECTION 2000
'Heads I Win, Tails You Lose'
An explanation of liberal legal philosophy.
I have long been amused by those modern liberals and leftists who try to instruct conservatives as to what "true" conservatism requires of them--particularly when conservatives get uppity and actually gain control of some institution of governance. Conservatism, say the scolds, requires that one accept and "conserve" the welfare/regulatory state that "progressives" have been building for 60 years.
We are now experiencing a judicial version of this phenomenon: judicial activists and nationalists instructing conservatives and federalists about the meaning of judicial restraint and federalism. Typically the words "activism" and "restraint" lack content and I prefer to avoid them. But here "judicial activism" refers to courts that are willing to overstep the bounds of either the Constitution, or unquestionably constitutional statutes, to impose their will on the other branches of government and on the people themselves.
That this is what the Florida Supreme Court did in its 4-3 ruling last week has been pointed out by others, including the chief justice of that court. Still, it is useful to recall that the whole mess began way back on Nov. 17 when the Florida Supreme Court issued the following stay: "In order to maintain the status quo, the Court, on its own motion, enjoins the Respondent, Secretary of State and Respondent, the Elections Canvassing Commission from certifying the results of the November 7, 2000, presidential election, until further order of this Court." Had they restrained themselves back then, Al Gore would already have conceded the election and David Boies would be looking for another Microsoft to sue.
As one who believes in a judiciary that actively polices the lines between the powers of government and the rights retained by the people, as well as between the powers of the national government and those of the states, and between the powers of one branch and those of another, I find this argument amusing. For it amounts to a "heads I win, tails you lose" theory of judging. Conservative justices confronted with activist legislatures must roll over in the name of restraint, thus creating a convenient one-way ratchet of constantly expanding government and the erosion of any separation of powers or federalism.
And now we learn that, in the name of federalism and judicial restraint, conservative and federalist justices must "defer" to a state supreme court that showed no deference whatever to the legislature which set election deadlines and procedures, to the Florida secretary of state--a constitutional officer--who attempted to adhere to those deadlines, to the circuit court judge who ruled that the secretary of state had acted within her statutory discretion, to the circuit court judge who ruled that the canvassing boards had not abused their discretion, and to the U.S. Supreme Court itself, which had unanimously urged the Florida Supreme Court to retreat to a neutral corner.
Where were the panel discussions on judicial deference and restraint then? No, back then we were instructed that it was shockingly bad form for James Baker III or anyone else to question the integrity of a supreme court.
Well, the rules of decorum have switched again. Now, and only now, we are urged that judges must exercise "restraint." Or at least we are urged that conservative judges must exercise the restraint they say they believe in. It is a convenient argument indeed. A kind of intellectual jujitsu that tries to turn an opponent's own thrusts against him. Activist judges are acting true to their principles when they escape the bounds of the law, while conservative justices are hypocrites if they abandon their principles of "restraint" to bring wayward courts back to earth. Heads, activist justices win; tails, conservative justices lose.
If the U.S. Supreme Court was correct to find that the Florida Supreme Court had likely overstepped the bounds of Article II, of the 14th Amendment or of federal law, it was no violation of "judicial restraint" to stop the Florida vote count marathon. And it will be no violation of restraint to reverse the rule of the Florida judges and to restore the rule of law. Conservatives would be wise to remember this in the future whenever when they find themselves urging judicial restraint in the face of other types of usurpation by judges, by legislatures or by law enforcement.
Mr. Barnett is a professor at Boston University School of Law and author of "The Structure of Liberty: Justice and the Rule of Law" (Oxford University Press, 2000).
