Yuval Levin recently wrote TheFractured Republic, an intelligent look at the state of political discontent, and a recommended read. He recently wrote Hillary Is an Embodiment of the Left’s Disdain for Democracy with coauthor Ramesh Ponnuru in National Review. He examines three reason why Hillary is the larger threat while acknowledging Trump’s significant shortcomings.
This is the third way in which that liberalism is a threat to American constitutional democracy. Liberal judicial philosophy understands the courts, like the executive branch, to be in the business of advancing what is properly understood as a legislative agenda. In essence, liberals want everyone but Congress — at least so long as they do not control it — to advance such an agenda. This preference leaves them with an entirely consequentialist attitude toward the courts, and they are increasingly uninterested even in making a case for such an attitude as a form of constitutional interpretation.
Old tropes about judicial “activism” and “restraint” can obscure the root issue of judicial lawlessness. Whether in “actively” overturning acts of Congress or state laws or in showing “restraint” and affirming a statute or regulatory action they approve of, liberal judges now frequently pursue substantive policy outcomes rather than advance some particular understanding of our constitutional system and its limits. And those policy outcomes are almost always precisely the same ones liberals pursue through a hyperactive presidency and an overreaching administrative state.
This aggressive progressivism threatens our democratic-republican form of government because it begins by seeing the restraints on power inherent in our constitutional system as obstacles to be overcome. It (correctly) perceives that they can best be overcome by weakening the Congress and strengthening the executive and by using the courts as an instrument for both of those ends — thereby making the courts both too strong and too weak to properly serve the constitutional system.
The troublesome legal trend is for the Supreme Court to support the legislature as the embodiment of democracy instead of supporting the Constitution as the embodiment of liberty.
Judicial activism is usually condemned from the right as ‘legislation from the bench’. ‘Judicial restraint’ usually means the reluctance to overturn laws unless in clear violation of the Constitution. These definitions have become cloudy as the bench has ‘actively’ agonized in the direction of supporting legislative majoritarianism rather than Constitutional protections.