Activism? Or Restraint? Pick a Label : Conservative justices interfere with legislation, but they choose different issues from liberals.

The confirmation hearing on the nomination of Judge Ruth Bader Ginsburg to the Supreme Court focused on her decisions in some controversial areas and on whether she is a “judicial activist.” The prevailing mindset about courts and judges--usually capsulized in the phrase “judicial restraint”--rejects judicial intervention without strictly construed authority and emphasizes democracy, the rule of law and decision-making driven by legal rather than political methods.

The conservative justices who now dominate the court are assumed to be restrained and to have established an appropriately subsidiary role for the court in our constitutional scheme. A new justice can have different political inclinations, but is expected to share that judicial inclination.

The record of the conservative justices, however, and the historical record of the Supreme Court, reveal a different truth about judicial restraint: Nobody really practices it. Conservatives and liberals have each tended to advocate judicial restraint--typically justified with the lofty goal of stopping the courts from interfering with the will of the people--when they lose control of the courts.

But the most determined and successful advocates of judicial restraint in our history were liberals in the first half of this century. The conservative Supreme Court of that period invalidated economic and social legislation aimed at, for example, limiting child labor and oppressive or dangerous working conditions. Liberals opposed this interference by advocating judicial restraint, conceived--like the conservative conception of our time--as a neutral, independent and overriding principle that transcends politics.

Judicial activism to protect individual rights and personal freedom, usually favored by liberals, was prevalent in only two periods in our history, from 1937 to 1944 and from 1961 to 1973. But judicial activism in furtherance of other goals--an activist judiciary--is uniquely American and has been with us more or less since 1803, when Chief Justice John Marshall announced judicial review, which is nowhere mentioned in the Constitution.

Further, if government intrusiveness is the central problem, it is strange that the liberal courts of the 1960s have become the prime villains. Their judicial activism was largely aimed at stopping government intrusion on individuals. For example, confronted with Connecticut’s ban on contraceptives, the Supreme Court in 1965 established a new constitutional right to privacy. Despite the effective one-liners about liberal judges in almost every speech by President Reagan, judicial activism is not the same as government intrusion.

The current conservative justices have actually shown no reluctance to overrule precedents, to break new judicial ground, or to invalidate legislation. They have explicitly abandoned any pretense of being bound by precedents, retrenching the range and content of the individual rights usually identified with American freedom far more drastically than is commonly understood. For example, the free speech rights most important to people of ordinary means have been seriously undercut, and a person can be executed without a hearing although there is credible new proof of innocence if the proof is not discovered soon enough after trial.

Judicial interference with legislation to eliminate environmental or safety restrictions on businesses or to stop government intrusions into the economy has been very much a part of the conservative agenda. Conservative justices also tend to invalidate legislation when the civil-rights issue is campaign-financing reform, bias-motivated crime or affirmative action.

Whether dominated by conservatives or liberals, the Supreme Court plays a major role in American politics and culture. The question is not whether there will be judicial activism, but on what issues and in favor of which groups or segments of society will it be selectively employed.

Perhaps the most difficult challenge--for Ginsburg, the Senate, President Clinton and all of us--is to break out of the cycle of alternating conservative and liberal accusations of inappropriate legal methodology that has so deformed legal and social discourse. We should be talking about substance, values, vision and the extraordinary role of the law and lawyers in our society and culture.