(National Review) — With the nomination of Brett Kavanaugh to the Supreme Court, you’re probably going to be hearing a lot of dumb things from your left-leaning friends about judicial activism, the power of precedent, and constitutional rights. A few things you’ll want to keep in mind.
1. Overturning a law as unconstitutional isn’t “judicial activism.” Failing to adhere to a Supreme Court precedent isn’t judicial activism either. If the law is in fact unconstitutional — meaning in conflict with the actual text of the Constitution — then throwing it out is not judicial activism: It is the Court’s duty. Likewise, if a precedent has no basis in the Constitution, then overturning it is not judicial activism: It is the Court doing its job.
2. The Court gets it wrong from time to time. Often in the past, the Court has got it wrong in decisions that offend our moral sensibility. In other instances, the Court has got it wrong when reaching an outcome we might support — an outcome that is, in fact, good. There are a fair number of legal scholars, conservative and liberal, who believe that Brown v. Board of Education was a poor decision (or at least a poor opinion) as a matter of constitutional law, irrespective of the fact that desegregating American schools was a moral necessity. It is not the case that every moral good is mandated by the Constitution or that every moral ill is prohibited by it.