It's apparent from the deplorable reaction of the media elite to the extraordinary Supreme Court decisions that ended the 2022 term that many of them misunderstand the difference between political conservatism and judicial conservatism.
Political conservatism is a philosophy pertaining to public policy that it seeks actively to implement by government or social action.
Judicial conservatism is an entirely different animal. The central tenet is that the making of social policy is not - or should not be - the province of the judiciary, that social policy is the business of legislatures. Judicial conservatives may be political conservatives, but if they are true to the philosophy of judicial conservatism, they do not implement conservative public policy.
The pundits misunderstand the difference. Thus, you have otherwise sensible individuals asserting that the Supreme Court (in Dobbs v. Jackson Women's Health Organization) banned abortion nationally. Nothing of the sort - as the last paragraph of Alito's opinion for the majority, the opinion returns the issue to State legislatures, i.e., to the people. The decision is not itself activist. What it did was reverse one of the most jurocratic decisions in United States history. That's what judicial conservatism actually is - a refusal to make policy in arenas that are properly the subject of popular decision making.
As the Democratic elites are beginning to realize (and should have known from the outset), politically, the decision is very bad news for the GOP. It's the gift that keeps on giving. For years, Republican politicians have proposed, and even enacted, statutes about concerning abortion that are totally at odds with actual public attitudes, confident that they'd never have to put their money where their mouth is, because of Roe. But the reality is that a sizable majority of the public firmly believes in an unconditional right to abortion in the early stages of pregnancy, with increasing reservations as the pregnancy proceeds. That's pretty much the pattern of law throughout the entire Western world. The Republican Party is likely to pay a high price for all the blathering it has engaged in over the years, free of charge thanks to Roe. Now the piper has to be paid.
The shrill cries that the Supreme Court has become an undemocratic institution making its own brand of public policy just won't fly. Even the First and Second Amendment decisions, in which the Constitution requires the Court venture into the realm of social policy, are severely limited. The gun case, New York State Rifle and Pistol Assn, v. Bruen did not target gun regulation so much as regulation that conferred unlimited discretion on licensing authorities. New York and other States have responded accordingly. Kennedy v. Bremerton School District turned on the personal and private nature of the coach's activity, though a number of commentators have disgraced themselves by asserting that the football coach used an element of coercion with respect to his players. (If he had, the case would be Constitutionally trivial.) That factual element was conspicuous by its absence in the lower court proceedings, and only imported into the record by the school district at the appellate level when the awkwardness of its position began to become apparent. What it means as a practical matter is that the Bremerton case is limited to its facts.
Alexander Hamilton famously described the judiciary as the 'least dangerous branch of government'. Judicially conservative courts actually conform to that description. The real complaint of media elites is not that courts are making policy, but that they are not. Liberal policy makers, some of which I support, are actually going to have make their case before the people, rather than friendly judges. Horrors.
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