A Stitch in Haste

When it comes to lay commentators, some conservatives are more equal than others.

George Will:

With the parties warring over the composition of the federal judiciary, and with a Supreme Court vacancy perhaps impending, Americans should use the court's end-of-term decisions as whetstones on which to sharpen their sense of the ambiguities in the categories — "liberal," "conservative," "activist," "practitioner of judicial restraint" — used when judges are discussed.
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In Monday's decision, which of the justices were liberal, which were conservative? Which exemplified judicial activism, which exemplified restraint? Such judgments are not as easy as many suppose.

Indeed. This echoes my repeated insistance that it is preposterous to call jurists such as Robert Bork, Antonin Scalia and Lino Graglia "strict constructionists." A strict constructionist doesn't lament reading things into the Constitution (e.g., the right to an abortion or the right to marry the competent consenting adult of one's choice) while at the same time showing no compunction whatsoever about reading text out of the Constitution. As I blogged previously:

Call such jurists conservatives, call them originalists, but do not dare call them "strict constructionists." They are nothing of the kind. And do not dare let them whine about what is and is not in the Constitution — they have no standing to do so.

Justice Scalia's sell-out, or flip-flop, or whatever you wish to call it, in Raich is hardly the "anomaly" some people think it is.

William F. Buckley, Jr.:

The Supreme Court did what conservative court-watchers should welcome. It looked the California situation in the face and said: If Congress doesn't like the law, let Congress change it, but don't look to the Supreme Court to improvise on the drug laws.
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Federal prosecutors are free, after this clarification from the Supreme Court, to proceed to arrest users, on the grounds that the law is the law.

The law is the law, and the Constitution is only a suggestion I suppose. And of course no one was asking the Court to "improvise on the drug laws;" they were asking the Court to keep Congress honest and reinvigorate the "original intent" (which I thought conservatives respected if not worshipped) of the Commerce Clause and Article I of the Constitution generally, namely that we are not an unfettered, runaway democracy but rather a constitutional republic of enumerated powers that are not to be exceeded merely to placate the whims and passions of the majority.

But to "activist" conservatives like Buckley, exceeding constitutional limits is no big deal — "the law is the law" — so long as it's to accomplish something you happen to like.

What a cruel PsychOps torture we libertarians are subjected to by conservatives. It's the ivory tower equivalent of "good cop, bad cop." Does conservatism mean the reasoned, historically-rooted analytics of George Will (not always correct, but always respectable), or is it the consequentialist histrionics of pompous fools like Buckley?

From where I stand, the Buckleys of the world are winning the battle for conservatism. How sad.