The Empty Promise of Compassionate Conservatism: A Reply to Judge Wilkinson

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CONSERVATIVE jurisprudence is in the midst of an identity crisis. After having been relegated to the sidelines during the Warren and early Burger Court eras, conservative jurists have solidified their control of the federal courts. In exercising this newfound power, however, conservatives have faced significant challenges created by their dominance. They have learned the agonizing lesson that it is far easier to criticize from the outside than it is to rule. Doctrines and principles that can be purely espoused when one is out of power are harder to maintain after one takes the reins of control. Adhering to long-standing doctrines and principles is particularly troublesome when those tenets limit the authority of those in control. Doctrines and principles are far less attractive when they serve to limit one's own authority than when they limit the power of one's ideological opponents. This dilemma has been particularly problematic for conservatives because for many years the centerpiece of their jurisprudential agenda was the call for judicial restraint. Conservatives consistently condemned as judicial activism judicial decisions that overturned the actions of elected officials.' Greater deference to popularly enacted provisions, conservatives claimed, was necessary to the rule of law.2 Things have changed. The conservatives' internal conflict between exercising their judicial dominance and adhering to tenets