It’s a wonky issue but one close to many conservatives’ hearts: judicial activism.
Sen. Rand Paul, R- Kentucky, is breaking with many in his party by challenging conservatives who call judicial restraint a sacrosanct conservative mantra. At a conservative conference on Tuesday, the potential GOP presidential candidate said that activism – sometimes – isn’t a dirty word.
“It’s is not as simple as we make it sound,” Paul said of the issue at a conservative conference hosted by Heritage Action Tuesday.
Paul -- who has also made a point of prodding traditional GOP maxims about criminal justice and foreign policy – pointed to the Supreme Court’s recent decision on the Affordable Care Act as an instance of restraint gone wrong.
“My point is not to convert you from judicial restraint to judicial activism but to think about it” the potential 2016 presidential candidate added. “I don’t want judges writing laws either, but do I want judges to protect my freedom? Do I want judges to take an activist role to preserve liberty?”
At the same conference one day earlier, Sen. Ted Cruz of Texas, Paul’s Senate colleague and potential 2016 challenger, insisted that Republicans must insist on restrained judges.
“I’m looking forward to seeing finally some real scrutiny to prevent judicial activists from being put on the bench who will impose their own radical agenda, including sadly the judicial activism we have seen in recent months with courts effectively striking down the marriage laws in 36 states,” Cruz told the small auditorium of conservative activists.
While the issue seems mundane and boring, it could come to a head during the next president's term - if not in the next two years - as the Supreme Court is likely to have an opening.
While judicial restraint is a philosophy first adopted by liberals in the early 1900s, lawmakers on both sides of the aisle have used the term to their advantage.
In recent years, conservatives have been more aggressive on pushing judges who follow a strict and literal interpretation of the Constitution as opposed to “activist” judges who they say favor personal beliefs over the law. The idea was championed by the late Robert Bork, a conservative judge who failed to be confirmed by the Senate for the Supreme Court in the 1980s.
For instance, during confirmation hearings for then-Supreme Court nominee Elena Kagan,, Texas Senator John Cornyn, a member of the Senate Judiciary Committee, focused his entire testimony on the perils of judicial activism.
“This activist vision takes the power of the people to make the law and change the law – and gives that power to the judiciary who make the rules for the rest of us. This stands in stark contrast to the founders’ vision,” Cornyn said in 2010.
“I think if the states do wrong, we should overturn them,” Paul said.
Paul’s challenge to conservatives to question their solid belief in judicial restraint is the latest issue that the libertarian-leaning potential presidential candidate split with fellow Republicans. And it’s one that has emerged in libertarian circles in the past couple of years.
Paul pointed to Chief Justice John Roberts’ decision to uphold the central parts of the Affordable Care Act in the landmark Supreme Court decision in 2012. Paul noted that Roberts’ decision was based on judicial restraint as Roberts stated it is not up to the court to alter the law. Paul, an opponent of the Affordable Care Act, said judicial activism would have gutted Obamacare.
“I think if the states do wrong, we should overturn them,” Paul said, also pointing to Jim Crow-era laws passed by states but eventually overturned by the Supreme Court.
Paul notes his position at a time when the Republican primary field is starting to populate. Former Florida Governor Jeb Bush and former 2012 Republican nominee Mitt Romney are contemplating a run, vying for votes and donors from similar pots of moderate Republicans. Paul meanwhile has been forging his own path, splitting with members of the Republican Party on various issues, including Cuba relations and issues of foreign policy.