At Liberty Law Blog, Greg Weiner has this reply to Evan Bernick's response to his initial post: The Power of Judges, Too, Is “Of an Encroaching Nature”: A Reply to Evan Bernick (it's also in part a response to my post here). From the core of the argument:
The Court, especially backed as it has come to be by the overwhelming weight of public opinion as to its institutional untouchability, should be subject to political restraints short of [impeachment]. Not to say that these restraints—jurisdiction-stripping, altering the size of courts, re-passing invalidated laws to provoke ongoing constitutional conversations, confining precedents to the parties to a case, declining to enforce rulings—should be everyday mechanisms. They should be part of a constitutional ecology that the courts take into working consideration.
Another part of that ecology, to be sure, should be judicial review. Especially given the esteem in which courts are held, other constitutional players would likely pay a political price for challenging them, and in recognition of that, would do so sparingly. Another part should be the elected branches’ engaging constitutional questions as they go about their business—in congressional debate, in presidential statements, and the like.
The model called for here is not judicial self-restraint. It is institutional restraint, just as the other branches are subject to institutional checks. By contrast, the use of an interpretive methodology, including originalism, as a limitation on the courts’ power is judicial self-restraint. It represents the hope that judges will stick to the method and execute it correctly—and won’t abuse the office, or err even with good intent.
(And, as usual, interesting discussion in the comments, including further discussion between Professor Weiner and Evan Bernick).
I mostly agree with Professor Weiner's latest post (to the extent the institutional checks on the judiciary that he proposes are constitutional). Even if some advocates of judicial engagement call for a "great degree of deference" to judges that "presumes judges’ superior capacity to correctly decide constitutional questions" (as Professor Weiner charges), I do not.
I also share his doubts about judicial self-restraint. But I may have a slightly different view of the question (as he poses it): "Can an interpretive theory constrain the courts?" The originalist strategy, I would say, is not just to rely on the courts themselves. Instead, it aims to change the legal and political culture more broadly, so that courts are understood by their chief audiences (the legal and political elite) to be acting legitimately when they follow originalism and acting illegitimately when they do not. Thus the strategy is not purely judicial self-restraint, but cultural restraint. Whether this is a realistic approach is a different question, but I do think that if the legal/political culture were changed in this way, it would have a profound affect on judging. Thus I would answer: an interpretive theory on its own likely cannot constrain the courts, but an interpretive theory that becomes embedded in the legal/political culture might be able to.
RELATED: John McGinnis objects: Judicial Restraint is a Question of Constitutional Interpretation. He begins:
Greg Weiner and Evan Bernick have been conducting an interesting debate in this blog about the virtues of judicial restraint and judicial engagement. Rather than directly confront either position, I would like to raise a methodological point. Doesn’t judicial restraint or judicial engagement need to be rooted in the meaning of the Constitution? In other words, judges’ approach to constitutional interpretation should not be based on policy arguments about how judges should behave but on the original meaning of Constitution itself, just as our interpretation of specific provisions should be fixed by original meaning. ...