"Of course, conservatives always claim to be against judicial activism"
About this Quote
Michael Kinsley compresses a long-running argument about the courts into a dry joke with a sharp edge. Judicial activism is the pejorative label for judges who, supposedly, reach beyond the text and precedent to impose their own preferences, especially by striking down laws enacted by elected officials. For decades, conservatives used that label to attack the Warren and Burger Courts for decisions expanding rights in criminal procedure, reapportionment, and especially abortion. To say they always claim to be against activism is to point to a posture that is both principled in theory and opportunistic in practice.
The punchline lands because modern conservatives have not shied from muscular uses of judicial power when it aligns with their constitutional vision. Decisions like District of Columbia v. Heller, Citizens United, and Shelby County invalidated longstanding regulations on guns, campaign finance, and voting oversight. Bush v. Gore abruptly halted a state recount and effectively decided a presidential election. More recently, cases rolling back agency authority and affirmative action, and overturning Roe v. Wade in Dobbs, demonstrate a willingness to discard precedent or democratic enactments when deemed inconsistent with original meaning. Supporters call these rulings judicial fidelity or restraint, not activism. Yet functionally they reshape national policy from the bench, the very effect conservatives once decried.
Kinsley is highlighting how elastic the term activism has become. Few actors embrace the label for themselves. Everyone prefers to say they are enforcing the Constitution as written, and that the other side is legislating from the bench. The quip suggests that what counts as activism often depends less on methodology than on whether the outcome pleases you. It is a reminder to view claims about judicial humility with skepticism and to recognize the strategic rhetoric at play. The real dispute is over constitutional interpretation and power, and both sides reach for the courts when they think the text, history, and votes are on their side.
The punchline lands because modern conservatives have not shied from muscular uses of judicial power when it aligns with their constitutional vision. Decisions like District of Columbia v. Heller, Citizens United, and Shelby County invalidated longstanding regulations on guns, campaign finance, and voting oversight. Bush v. Gore abruptly halted a state recount and effectively decided a presidential election. More recently, cases rolling back agency authority and affirmative action, and overturning Roe v. Wade in Dobbs, demonstrate a willingness to discard precedent or democratic enactments when deemed inconsistent with original meaning. Supporters call these rulings judicial fidelity or restraint, not activism. Yet functionally they reshape national policy from the bench, the very effect conservatives once decried.
Kinsley is highlighting how elastic the term activism has become. Few actors embrace the label for themselves. Everyone prefers to say they are enforcing the Constitution as written, and that the other side is legislating from the bench. The quip suggests that what counts as activism often depends less on methodology than on whether the outcome pleases you. It is a reminder to view claims about judicial humility with skepticism and to recognize the strategic rhetoric at play. The real dispute is over constitutional interpretation and power, and both sides reach for the courts when they think the text, history, and votes are on their side.
Quote Details
| Topic | Justice |
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