About the time of the Sotomayor Supreme Court confirmation hearings, I published a post called: How Does a Michigan Textualist Define Judicial Activism? In that post I advanced an opinion (among others) that was judicial restraint and what was judicial activism generally depended almost exclusively on whether judges of one's political persuasion made up the majority of a particular reviewing court. I did not believe this to be a spectacularly original opinion.
The post was written on July 29, 2009. Early on February 5, 2010, I received the following comment, set forth here in its totality:
"I could not disagree more with your conceptualization of activism and restraint. I find it odd, but not telling, that I have never heard a conservative make such a claim, though often hear it from more liberal-minded folk. But it always comes off as a last-ditch effort to argue that all judicial philosophies are on par, and thereby take a relatively moderate stance, when in reality there is no effective label for the jurisprudence exercised by what is largely considered the "activist" wing of the Court. You can always tell the losing side when it offers stalemate. But at the end of the day, is not some guiding principle is necessary? And though you will inevitably retort with something as trite as "Even Scalia writes opinions in which he discards the textualism he champions," you simply cannot shake the fact that 98% of his decisions do track his textualist philosophy; that, in any event, any admittedly rare misstep on his part is no indictment of the philosophy itself; nor the frighteningly pathetic fact that I know with 99% certainty how a Marshall (Thurgood) or Brennan would decide a case without reading past the facts. The oath is to a document. With all due respect, I find your view on this fatally short-sighted, and without a doubt skewed by the myopic lens of politics. It would be a pleasure to discuss this further, so please do not hesitate to email me."
This comment had come from one JR, from a Virginia.edu domain.
Within one hour I posted the following reply, again in its entirety:
"Ouch, the skewed by politics comment hurts. If you look at my site you will find that I have a whole category on the evils of partisan politics. There is indeed much in what you say, and I agree about the necessity of guiding principles. I still believe (and I may have missed something, as this site is an off hours hobby and I have to run to court) that activism is a label used by the losing side, liberal or conservative. Textualism, in my opinion, has been used as a convenient label, and one that carries the obvious appearance of legitimacy, to mask, at least in Michigan, a results oriented legal philosophy. I am more conservative than liberal, if tags must be applied, and I am currently wrestling with the practical results of the Citizens United case, which may be a correct decision. Anyway, happy to discuss this further. Got to run to my paying job. Thanks JR. Be well."
As I am still not sure how this comment feature works, I posted the reply and then sent it on to JR as a personal email message. I have not heard from JR, even though JR promised a dialog on the issue. I operate on the assumption that if you don't reply to an email in two weeks, you are unlikely to respond at all.
When I first read JR's message and saw its domain, I flattered myself that it might have come from a University of Virginia Law School Prof. But, remembering my own law school days, and reviewing the rather cocksure tone, and the "I'd love to discuss this with you (if you dare)" sign-off, I tend to think that JR is a U of V law student. This opinion is bolstered by the fact that I have haven't heard back. Probably moved on to tell someone else how smart he/she is.
By the way, JR, if you have never heard conservatives apply the activism/restraint labels in the way I have suggested, you have not read Michigan Supreme Court opinions by the Engler Four.
In closing, I hope JR is going somewhere warm for the Winter Break, and best of luck on this semester's Con Law final.
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