RALEIGH — Right-leaning lawyers and legal analysts agree that the courts are a vital venue for preserving constitutional rights. But they note a surprising trend of conservative support for using judicial activism to achieve that aim rather than the traditional conservative deference to state and federal legislative decisions.

“Heaven forbid we go to court to try to have our constitutional rights protected because, after all, courts have no role in checking and balancing political branches, right?” said Nick Dranias, president and executive director of the Compact for America Education Foundation, at the recent Civitas Institute Conservative Leadership Conference in Cary. Dranias’ group is pushing for a convention of states to enact a balanced budget amendment to the U.S. Constitution.

“That’s what we’ve been telling ourselves on the right for decades now, and we’ve only come out from under this slumber of the mythology that the judiciary has no role to play in our system of government in checking and balancing the other branches of government,” Dranias said about the role of judicial activism.

Kevin Hales, president of the Triangle Lawyers Chapter of The Federalist Society, which promotes liberty, traditional values, rule of law, and separation of government powers, has a more tempered view in one of its core positions.

It is “emphatically the province of the judiciary to say what the law is, not what it should be. This clearly suggests judicial restraint,” Hales said.

“But there’s fortunately a lively debate, and has been, in the Federalist Society for a long time as to what this means,” Hales said. “Does it mean strong deference to legislative bodies, which some people call judicial abdication, or does it merely mean that judges shouldn’t really legislate from the bench?”

The local Federalist Society recently hosted an event at which Reason magazine senior editor Damon Root, who writes about legal affairs, politics, and history, discussed discussed those competing strains of judicial philosophy through the lens of his book, Overruled, the Long War for Control of the U.S. Supreme Court.

Root’s noted that progressive Supreme Court Justice Oliver Wendell Holmes, whose triumphal judicial vision helped to usher in the New Deal, and current Supreme Court Chief Justice John Roberts, “the epitome of today’s conservative legal establishment,” both are adherents of judicial restraint.

Root said Holmes is remembered for saying, “If my fellow citizens want to go to hell, I will help them. It’s my job.”

In his 2012 Obamacare case decision, Root said, Roberts wrote, “ ‘It is not our job to protect the people from the consequences of their political choices.’ So Roberts might have said let the people go to hell.”

Holmes became a hero to the New Dealers by arguing “the courts should defer to the policy judgments made by democratically accountable officials and uphold the economic regulations passed by progressive-minded lawmakers both on the federal and state levels,” Root said.

Roberts has the same judicial temperament, guided by the conservative reformation that began with the late federal appeals court Judge Robert Bork.

“Both of these men are proponents of the idea of judicial restraint, judicial deference, which is the idea that the courts are the least democratic branch of government, and therefore owe extra respect, extra deference, to the democratically accountable branches,” Root said.

Majority rule is the first principle in Bork’s judicial philosophy, he said, and he turned that into a conservative rallying cry.

At the same time, the libertarian legal movement that was forming “as this insurgency within the broader ranks of the American right” cast the Constitution as a liberty document protecting a broad range of written and unwritten individual rights from government regulation.

That libertarian view places strict limits on government, and it is the job of the courts “to police the other branches of government, and to strike down unconstitutional government acts, to override the democratically accountable branches,” Root said.

The originalist position was evident in Kelo v. City of New London, Root said. The Supreme Court ruled 5-4 that the Connecticut city could use eminent domain powers to force property owners off their land for the public good and replace them with businesses providing higher tax benefits to the community.

That controversial ruling, written by Justice John Paul Stevens and underpinned by the notion that elected state and local governments know best what is in the interest of their communities, was condemned from both the left and right.

Conversely, conservative Supreme Court Justice Antonin Scalia was criticized as a judicial activist by some judges and others on the right for his majority opinion in the landmark District of Columbia v. Heller Second Amendment case, Root said.

In that ruling, the court for the first time ruled there is an individual right to gun ownership, particularly for purposes such as self-defense.

Dranias believes conservatives “unilaterally disarmed” in the culture and constitutional wars by disavowing judicial activism. “The truth is, we just didn’t like some of the rulings that came out of the judiciary,” hence the backlash embodied in the concept that courts shouldn’t interfere with other political branches.

Judicial review is not new, Dranias said. Before U.S. independence, state and royal governments and judiciaries would void laws passed in the British Parliament, he said. “Lord Cook in the 1600s was voiding parliamentary laws as violating fundamental principles of justice.”

He said judicial power as a check and balance on the legislative branches always has been part of American and England traditions. In The Federalist Papers, Alexander Hamilton advocated judicial review as part of the powers of the judicial branch that should be part of the new Constitution.

“Mere legislative will was in a category no different than that of a tyrant’s will, and if you look at 19th century case law this distinction is all over what courts were doing between the early 1800s all the way up through nearly the 20th century,” Dranias said.

“There is absolutely no point in having a system of constitutional protections that is interpreted by the very body that it’s meant to constrain primarily, and that is the legislature,” Dranias said.

“If we’re not going to lose this political game,” Dranias said, “if we’re not going to lose our freedoms, we have to embrace it.”

Dan E. Way (@danway_carolina) is an associate editor of Carolina Journal.