GOP Claim: Conservative judges exercise "judicial restraint" by adhering to a "strict construction" of the Constitution.
Reality: The conservative majority on the Rehnquist Court was openly activist in ignoring the text of the Constitution to expand state power and limit individual rights under federal law.
Proof:
"Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition . . . which it confirms."
- Seminole Tribe v. Florida
Replace "presupposition" with "penumbra," and the conservatives' treasured federalism jurisprudence looks a lot like the Warren Court's privacy jurisprudence.
More Proof:
"Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States."
- Univ. of Ala. v. Garrett
(holding that state employers who violate the Americans with Disabilities Act are immune from liability when sued by individuals seeking to vindicate their rights)
Bottom line: The judicial activism of the Rehnquist Court expanded state power at the expense of individual rights, while the activism of earlier courts expanded individual rights, most notably the right to privacy.
Put in political terms:
Republicans want judges who will expand state power, while Democrats want judges who will safeguard individual liberties.
Which do you think most Americans support?