Geoffrey Stone: Justice Scalia's Greatest Failure
In the 1960s, political conservatives accused the justices of the Warren Court of imposing their own liberal values and preferences on the nation in the guise of constitutional interpretation. They charged that the justices of that era consistently exploited the ambiguity of vague constitutional provisions guaranteeing, for example, "the freedom of speech," "the equal protection of the laws," "the free exercise of religion," and "due process of law," to inflict upon the nation liberal policies that were not, in fact, warranted by a more even-handed approach to constitutional interpretation.
The challenge for these conservatives was to figure out a way to constrain the temptation justices might have to construe ambiguous constitutional provisions in a way that comports with their own sense of what makes for a good society. The initial solution suggested by conservatives was a firm commitment to the principle of judicial restraint. Thus, in Richard Nixon's day, a "conservative" justice was a justice committed to the notion that a justice should automatically uphold the constitutionality of government action whenever there was any reasonable argument that could be made in its defense. A justice committed to this approach would invalidate laws only in extraordinary circumstances.
Although some measure of judicial restraint is essential to the legitimacy of constitutional interpretation, even conservatives recognized that judicial restraint in all cases would seriously abdicate a fundamental responsibility that the Framers themselves entrusted to the judiciary. As James Madison observed when he proposed the Bill of Rights, it would fall to the "independent tribunals of justice" to serve as "the guardians of those rights" and "to resist every encroachment" upon them. In short, the Framers did not intend for the judiciary to act with across-the-boards judicial restraint. Such an approach would clearly undermine a critical element of the American constitutional system, which relied on the judiciary to place a check on majoritarian abuse.