Constitutional Law

Judge Posner and judicial activism

Judge Richard Posner comes from the subset of judicial conservativism that isn't necessarily social conservative nor libertarian conservative, but one might say Borkian conservative -- that views avoiding "judicial activism" as a high value. He's long been publishing in opposition to Heller and McDonald, equating them to Roe v. Wade (which in his value system is a strong condemnation).

Josh Blackman has a post criticizing his latest efforts. He does a good job of tearing them apart, but to my mind his writing raise another question.

If "judicial activism" has any meaning beyond "striking down laws that I like," it must be something like "making constitutional decisions based upon the judge's own policy desires." Posner is writing things such as

"There are two important lessons that can be drawn from Becker?s discussion of gun control. The first is that a problem that is not dealt with in its early stages may become insoluble. It is not only the sheer infeasibility of removing 200 million guns from the American population, but also the emergence of a gun culture, that has ended hopes of disarming the population."

I see a judge interpreting a constitutional provision in light of his policy "hopes" as precisely the sort of "judicial activism" that Posner criticizes -- but cannot see in himself. Unless the definition becomes "to strike down a law based on my policy hopes is wrong, but to uphold it on the same basis is right," which seems a bit inconsistent.

Full post as published by Of Arms and the Law on February 20, 2011 (boomark / email).