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04/30/2012

Damon Root: The New York Times Flip-flops on Judicial Restraint
Michael Ramsey

At Reason.com, Damon W. Root notes that the New York Times can't decide what it thinks about judicial restraint:

To recap: The New York Times attacks the current Supreme Court for abandoning judicial restraint and “signaling its willingness to replace law made by Congress,” then turns around less than a month later to attack Judge Bork for advocating judicial restraint and saying that “the court must defer to the will of the majority.”

Shouldn’t the Times’ editorial board try a little harder to avoid openly contradicting itself like that?

To be fair, I think lots of people have this problem.  Possibly including me.  But I'm not running a major newspaper.  And the health care case at the Supreme Court, which inspired the NTY's "judicial restraint" editorial, produced an astonishing number of poorly-considered appeals to judicial restraint on the political left which shouldn't be forgotten.

On a broader note, living constitution advocates seem to have a particular problem in this regard.  To be sure, originalists are known to sound the virtues of democracy at times and the virtues of constitutional (judicial) constraint on democracy at others.  But at least many originalists have an explanation, if a bit of a tautological one, by defining "judicial activism" as judicial action contrary to original meaning.  Thus judicial activism is always bad (albeit because judicial activism is defined as deciding contrary to the way the speaker views the fixed law).  Living constitutionalists, on the other hand, have more serious difficulties explaining what they mean by judicial activism and why it's bad, since by definition they want the court to "evolve" the Constitution in new and principally policy-driven ways to overturn majorities.  (If they only wanted to evolve the Constitution to empower majorities, they would be with Judge Wilkinson instead).  So their definition of "judicial activism" ends up being even more empty than that of the originalists: basically, decisions moving the Constitution in policy directions they don't like.  The result is the embarrassing pair of NYT editorials Damon Root notes.  (I expect quite a few similar performances as the health care debate recedes and new issues arise on which judicial action is desired).