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Judicial Restraint

The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner

Evan Bernick | Posted 05.27.2016 | Politics
Evan Bernick

There is no question of more pressing and fundamental importance to modern American constitutional law: Is it proper for judges to broadly and systema...

Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement

Evan Bernick | Posted 05.15.2016 | Politics
Evan Bernick

Calls for judges to be constrained by the Constitution's original meaning are entirely proper--and important.

Judicial Restraint Cannot Restrain the Administrative State

Evan Bernick | Posted 03.24.2016 | Politics
Evan Bernick

The nomination of Judge Merrick Garland to the Supreme Court has stimulated a number of important debates about the future of the Court and about judicial philosophy. Among those debates: Just what does it mean for a judge to be "restrained," and is "judicial restraint" a virtue or a vice?

Justice Scalia's Faux Originalism

Bennett L. Gershman | Posted 02.22.2016 | Politics
Bennett L. Gershman

The adulation by admirers of Justice Antonin Scalia over his alleged role as a conservative constitutional steward who applied neutral, nonpartisan principles, is pure myth. While promoted by conservative ideologues who fawn over Justice Scalia's flamboyant jurisprudence, holding him up as an icon for conservative principles, is simply hard to take.

No, Chief Justice Roberts' Judicial Restraint Isn't Admirable

Evan Bernick | Posted 09.23.2015 | Politics
Evan Bernick

In a word, no. The judiciary is not an exceptional, deviant institution in an otherwise pure democracy. The Constitution is pervasively countermajoritarian. It protects Americans against majority tyranny by providing that the government may act only when it has the authority to do so and by explicitly protecting individual rights.

Denying the Dogma of Judicial Deference: A Reply to Carson Holloway (Part I)

Evan Bernick | Posted 06.09.2015 | Politics
Evan Bernick

In this post, I will argue that Holloway's approach to judicial review is informed by an understanding of rights that is alien to that of the Framers and ignores the express language of the Ninth and Fourteenth Amendments. In a subsequent post, I will trace the tragic consequences of that approach.

John McGinnis and the Originalist Case Against Judicial Restraint

Evan Bernick | Posted 05.31.2015 | Politics
Evan Bernick

Last week, I argued that the judicial restraint long advocated by conservatives has its roots in the Progressive era, drawing upon Professor John McGinnis' recent paper, The Duty of Clarity, in support of my arguments.

The Progressive Roots of Judicial Restraint

Evan Bernick | Posted 05.24.2015 | Politics
Evan Bernick

Such restraint has led judges to rubber-stamp patently protectionist regulations, uphold the bulldozing of entire neighborhoods for private economic development, and rationalize their way into upholding Obamacare's individual mandate as a "tax."

Why Are Conservatives Celebrating the California Teacher Tenure Decision?

Peter H. Schuck | Posted 08.16.2014 | Politics
Peter H. Schuck

The conservative mantra is that under our constitutional system, the people's elected representatives are supposed to make such decisions, not unelected judges. Conservatives' delight in the Vergara decision seems utterly inconsistent with this principle.

Savaging Roberts: Conservatives Run Amok

Geoffrey R. Stone | Posted 09.02.2012 | Politics
Geoffrey R. Stone

Why have conservatives gone over the cliff in their anger at Roberts? Why can't they just accept that the Chief Justice disagreed with them about one of several very complex constitutional issues presented in this case?

The Obamacare Surprise: Chief Justice Roberts' Brilliance as Institutional Strategist

Peter M. Shane | Posted 08.29.2012 | Politics
Peter M. Shane

Of the many dozens of predictions I had heard, many foresaw a 5-4 vote, but I know of no one who expected a 5-4 vote in favor of the individual mandate that would align Chief Justice John Roberts alone with the Court's four more liberal justices.

Justice Roberts' Extremely Conservative Obamacare Opinion

Chris Ladd | Posted 08.29.2012 | Politics
Chris Ladd

This ruling may be a disappointment. However, if we are serious about having the courts exercise greater respect for the separation of powers, then we have to embrace that philosophy even when it's politically inconvenient.

Conservative Scholar: Supreme Court Should Uphold Obamacare

The Huffington Post | Mike Sacks | Posted 04.16.2012 | Politics

Yet another prominent conservative legal scholar has stepped forward to urge the Supreme Court to uphold health care reform as firmly within the court...

Mike Sacks

President Obama Locks Horns With Chief Justice Roberts

HuffingtonPost.com | Mike Sacks | Posted 04.05.2012 | Politics

WASHINGTON -- Looking to a Supreme Court decision in the health care case months away, President Barack Obama has locked horns with Chief Justice John...

Elena Kagan: Bench the Judge-Umpire Analogy

Aaron Zelinsky | Posted 05.25.2011 | Politics
Aaron Zelinsky

Chief Justice Roberts declared during his confirmation hearing that "Judges are like umpires... Umpires don't make the rules; they apply them." There are three strikes against this analogy.

Judging Sonia: In Defense of Judicial Activism and a Wise Latina

Arlene M. Roberts | Posted 05.25.2011 | Politics
Arlene M. Roberts

What is the role or expectation of a justice on the Supreme Court? An adherent of precedent? A policy maker? And just how did judicial activism garner such a tarnished reputation?