Or Maybe Conservative Just Prefer Conservative Policy Outcomes

In the course of a somewhat wrongheaded post on Honduras, David Fontana writing for TNR wanders into some hugely wrongheaded thinking about the American right’s constitutional vision:

There is an irony here. In the recent past, American political conservatives have (with some exceptions, such as in the area of gun rights) defended the prerogatives of democratic majorities in the face of supposed constitutional limitations (think of their opposition to Roe at the federal level or decisions legalizing gay marriage at the state level). By contrast, it has been political liberals (again, with some exceptions) who have defended the importance of anti-majoritarian devices like judicial review. In other words, in the inherent tension between liberalism and democracy that characterizes any free society, Republicans have erred more on the side of pure democracy, while Democrats have erred more on the side of liberalism and rights.

I think you have to be incredibly naive to take that point of view seriously. It’s true that conservatives have taken a dim view of liberal justices’ efforts to use judicial review to advance the rights of gays, pregnant women, atheists, and criminal defendants. But the legal right has been eager to use judicial review to countermand democratic legislation that they deem insufficiently solicitous of the interests of white people, gun owners, and businesses. The main critique of Sonia Sotomayor is that she declined to step in with some “activist” judging on behalf of Frank Ricci.

There’s an interesting theoretical debate about the role judicial review should play in a constitutional system. But the practical debate in the United States is just about on behalf of whom should it be used.