Justice Scalia and “Judicial Maximalism.”

January 19th, 2011

If it isn’t judicial minimalism, it must be judicial maximalism! In NASA v. Nelson, Justice Scalia attacked the majority for faux-judicial restraint, and charged them with activism.

Scalia disagrees with this faux-restraint, arguing that “by substituting for one real constitutional question(whether there exists a constitutional right to informa-tional privacy) a different constitutional question (weather NASA background checks would contravene a right to informational privacy if such a right existed), the Court gets to pontificate upon a matter that is none ofitsbusiness: the appropriate balance between security and privacy.” Scalia finds that this is “judicial maximalism.”

A quick search of the ALLFEDS database reveals zero hits. This seems to be the first instance of the word “maximalism” in a judicial opinion. Well done Justice Scalia.

Update: Commenter P.D. alerts me that a search for “maximalis!” yields 8 results. The only opinion that uses maximalism in the same sense that Scalia does is Emily’s List v. Federal Election Com’n, a notable campaign finance case. Judge Kavanaugh had this to say about McConnell v. FEC:

Trying to extrapolate from that case to this one is risky and reason enough to avoid the constitutional bog. Suffice it to say that the Supreme Court majority, the dissenters, and the commentators all have read McConnell as amaximalist opinion.