In today's editorial observation in the New York Times, Adam Cohen makes an argument I've heard with increasing frequency lately. Apparently finding unchecked judicial power a tough sell to the American public, the legal left has turned to this sort of "so's your mother" argument in which every judge, despite any claims to the contrary, is an activist. Judges who profess to exercise restraint are partisans, too, bending the law to reach their desired results. Therefore, everyone is an activist and the call for judicial restraint is just a partisan call for judges who reach conservative results. Or so the argument goes.

The idea is a dangerous one. It takes us to a world in which there are no right or wrong judicial decisions, only favored and unfavored policy outcomes. What legal realism did to the common law, this judicial relativism threatens to do to textualism, originalism, or any doctrine that would tether the judge to anything but popular political demands. If every judicial decision can be deconstructed as a a bundle of judicial polciy preferences, then a call for anything but critical legal thinking can be dismissed as merely a call for activism in disguise.

This argument suffers from at least two fundamental problems. First, it falsely assumes a binary. At the start of the judicial relativist argument, it posits two types of legal thinking: either the judge is guided only by the text and a discrete number of canons of construction, or the judge is guided by all her policy preferences. This assumption is apparent in Cohen's attack of Scalia's 11th Amendment jurisprudence. Scalia interprets it to mean something other than what is in the text, Scalia's interpretation is favored by conservative activists, therefore Scalia is a conservative activist. The problem is that this binary model completely ignores the role of precedent and historical use. If an originalist (or perhaps even a textualist) is confronted with 200 years of practice that suggest an interpretation of the Constitution other than what the plain meaning of its words would require, the judge may choose to defer to historical practice. When the judge defers to past practice or precedent--and when the judge overturns--is a real question that cannot be answered within the binary framework I've set out. Ideally, a judge who exercises restraint would have a well-developed approach to such questions. The judicial relativist stops her analysis before the question is even asked.

Second, judicial relativists would have us believe that if we find a correlation between a judge's judicial outcomes and political philosophy, activism must be in the air. Scalia frequently cites Texas v. Johnson as an example of the law taking him somewhere his politics would prefer he didn't go. So it can certainly happen. And as for the vast majority of cases in which politics and judicial interpretation happily coincide, correlation is not causation. For someone who places high value on the rule of law, both judicial restraint and political conservatism may be attractive philosophies. The two philosophies are natural allies. Both philosophies place high value on historical wisdom and the general principle of restraint. It is no accident that the proponents of judicial restraint are often conservative, but the complementary nature of the philosophies should not suggest that judicial restraint is merely a synonym for conservative activism.

Judicial relativism attempts to demonize judicial restraint by oversimplification. Of course the philosophy is incoherent if reduced to a single universal idea. But the mind of a judge is more nuanced than that. And once we recognize the nuance, the judicial relativist claim that we are all activists is exposed as little more than a political ploy with dangerous legal implications.