One of the longest running debates in American politics – and one on which the conservative side has fairly consistently prevailed – involves the proper role of the courts in our Constitutional system. Polls have consistently shown that a solid majority of the electorate agrees that the courts should limit themselves toppling the law, and should refrain from creating rights. The latter is a function that is, under traditional American political theory, properly reserved to the legislature. This notion – that courts should not involve themselves in creating new positive rights – has often been labeled with the shorthand term “judicial restraint.” Recognizing that they’ve lost the debate as currently framed, and fearful that the more ambitious aspects of the “progressive” agenda may not fare so well in the courts, the Obama Administration, and its friends in legal commentary circles, are now seeking to change the terms of the debate, or, perhaps more accurately, to change the meaning of the terms about which we are debating.Obama’s new riff, designed to make himself appear to be the true “conservative” and to paint the current Supreme Court as radical activists, is that “judicial restraint” requires courts to defer to the legislature when reviewing duly enacted legislation even, presumably, when the legislation under consideration plainly violates the Constitution. Jeffrey Toobin, a consistent Obama ally, adds his voice to the left’s newfound love for “judicial restraint” in a piece in the May 24 issue of The New Yorker.

Toobin quotes Obama to the effect that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” Toobin then opines that the Roberts Court has betrayed itself as an “activist” court through its decisions striking down portions of the McCain-Feingold law, certain pieces of local legislation imposing quotas in public school enrollment and the District of Columbia’s ban on handgun ownership. The clear objective of Toobin, and those who write in a similar vein, is to discredit these decisions and the jurisprudential principles underlying them, as “activist,” and to lay the groundwork for a defense of the “progressive” agenda in part based on a plea for judicial restraint. Toobin – and Obama – however, are advancing a flawed argument, and are doing so disingenuously.

The left’s notion of judicial restraint, revealed through his definition of “activist,” might hold truck – might – where the legislature takes seriously its own independent responsibility to faithfully interpret the Constitution and to refrain from enacting into law measures that plainly violate rights expressly bestowed by the Constitution. None of the matters for which Toobin takes the Roberts Court to task, however, meets this definition. All were plainly violative of explicit limitations on legislative powers set forth in the Constitution and were rightly invalidated. Substantial portions of Obama’s health care opus may well be deemed to be similarly flawed which is, of course, the entire point to the left’s recent attempts to claim the mantle of “judicial restraint.” Restraint is indeed a quality to be encouraged where the legislature has taken its obligations seriously and has acted with restraint itself and shown due deference to the rights bestowed upon the people and the States. Where Congress, or any other legislative body, has plainly overstepped its bounds and enacted a measure that plainly violates the Constitution, the Obama notion of “restraint” should cease to govern. In such circumstances, the courts have an independent obligation to vindicate the rights of the people as expressed in the Constitution by invalidating the offending legislation. Such decisions are by no means “activist,” in the way that the efforts of the Warren Court or Justice Kennedy to create new positive rights out of whole cloth were, and the act of deferring to the legislators who pass such laws is not “restraint,” it is cowardice.

If Obama, and Toobin, were willing to decry the kinds of activists who find in the Constitution “rights” that appear nowhere in the text and which cannot be understood to be Constitutionally protected under any legitimate interpretive theory, then they would, on that point, find me an ally. But I wouldn’t hold my breath waiting for them to take that leap. Those kinds of activists are just fine by them, so long as the “rights” that are being created square with the progressive agenda.

I’d like to take this opportunity to congratulate my good friend, Travis Laster, on becoming the newest member of the Delaware Court of Chancery. Travis was sworn in today, and replaces retired Vice Chancellor Lamb on the nation’s premier business law court. Travis is an exceptionally talented lawyer, and a good man. I have every confidence that he will be an excellent judge. Congratulations, Vice Chancellor, and good luck!