Strengthening Constitutional Self-Government

No Left Turns

Conservative Judicial Activism?

Here’s is a bit of a rant form the NYT on what allegedly is the most activist Court in a long time. I’m not going to quarrel with the very selective and distorted presentation of facts, except to say two things: The author sort of forgot the great and unprecedented act of judicial restraint that was deferring to Congress on partial birth abortion. And although I admit that the Louisville/Seattle race-based remedy ruling was somewhat activist, it was also, as I said before, a careful application of existing precedents and contained no innovations in doctrine. The author’s pointed conclusion is standard "judicial realism"--all justices, truth to tell, are all about imposing their will, their personal preferences, on the country. That would mean that he’s not indignant with the Roberts Court for its alleged activism, but only with those who deny it. But the author is exactly wrong to say we’re entering a new LOCHNER era; the Court may, instead, be withdrawing gradually from using Lochner-esque "substantive due process" in the privacy/autonomy realm. I actually agree that conservatives should resist manfully any attempt to restore the wrongheaded "economic liberty" judicial activism exemplified by LOCHNER, and I also agree that on balance it would be a mistake for the president to appoint the brilliant and forthright Janice Rogers Brown to the Court. My Scalia-based judicially restrained view: LOCHNER was wrongly decided, and ROE was wrongly decided.

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