Following the June release of the Supreme Court’s decision in District of Columbia v. Heller, Alliance for Justice noted that the five conservative justices who signed onto the majority opinion ignored precedent and decided the case solely on the basis of conservative ideology. We noted the hypocrisy of the opinion, written by Justice Antonin Scalia, probably the justice most critical of so-called “judicial activism,” which set aside almost 200 years of precedent to reinterpret the Second Amendment as a guarantee of individual gun ownership. Now, it seems two prominent conservative judges share our view.
According to an Associated Press article, Fourth Circuit judge J. Harvie Wilkinson and Seventh Circuit Judge Richard Posner, both Reagan appointees and noted conservative legal scholars, have publicly criticized Justice Scalia “for engaging in the same sort of judicial activism he regularly disdains.” Judge Wilkinson, who President Bush considered for a Supreme Court appointment in 2005, suggests that “the 5-4 decision in Heller…would have come out differently if he had been chosen for the court.” Judge Posner wrote in an article in The New Republic last month that “[t]he decision…is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”
We’re glad that the irony isn’t lost on everybody. Justice Scalia frequently touts his doctrine of “originalism,” repeating it to University of Minnesota students just last week. Yet, as we’ve seen time and again, he is more than willing to set aside his originalist principles if it means strengthening conservative doctrine. Maybe now we can move past the debate over code-words like “judicial activists” and “strict constructionists.” But, we won’t be holding our breath.