Back and Forth on Facebook--Judicial Restraint

In response to my post thanking the Almighty for GWB the following thread got started on my Facebook page:

Friend: Since striking down duly passed laws, and disregarding the Court's prior decisions are not hallmarks of judicial restraint, I trust that Republicans will no longer contend that the "conservative" justicis in the Supreme Court majority are not activists.

Me: see Marbury v. Madison. Striking down unconstitutional laws is exactly what they are supposed to do. Finding "shadows" and "penumbras" in order to MAKE LAW is what frosts Conservatives.

Me (again): ...and what's wrong with disregarding prior decisions, if they were botched? Wanna defend Dred Scott, counselor?

Friend: You miss my point. No one claims that John Marshall was not an activist judge. (Marbury in fact quite a power grab by the Court.) But whatever you think of the Court's decision, and I do disagree with it, the Court is not acting with restraint when it does not rule on the issue initially presented by the appeal, sets a second argument on an issue that it orders the parties to brief, and then reverses prior precedent. That is an activist court.

Me: And you miss mine. Conservatives don't mind judicial activism if it is in the pursuit of defending constitutionally protected rights.

Friend: I appreciate your candor.

Me: And I your intellect.


This back and forth illustrates something I think shouldn't be lost in the discussion of "judicial restraint". Conservative esteem for judicial restraint DOES NOT imply that the Supreme Court should sit as a potted plant, allowing "duly passed laws" or even decisions of previous Supreme Courts to stand--if they violate an existing constitutionally protected right.