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Mike Rappaport


Supreme Court Preview: The End of Conservative Judicial Restraint?
Michael Ramsey

Here (a week late) are my thoughts on the new Supreme Court term.  Last year, I suggested that the 2014-15 term might be the end of plausible liberal arguments for judicial restraint, on the basis of the then-pending same-sex marriage cases. I think that prediction was correct; after Obergefell, I have a hard time seeing how most left-of-center commentators can reasonably call for judicial restraint, as they will feel obliged to defend Obergefell, a case plainly incompatible with judicial restraint.  It would be refreshing if there were left-of-center commentators willing to attack Obergefell on judicial restraint grounds, but I have not seen them.  The most they seem to be able to do is praise Chief Justice Roberts for his restraint (while, I'm sure, celebrating his Obergefell defeat).

Similarly, the 2015-16 term may be the end of plausible conservative arguments for judicial restraint.  Consider the leading cases:

Friedrichs v. California Teachers Association: whether force union membership (or forced payment of dues) violates the First Amendment.

Fisher v. University of Texas: Whether UT's affirmative action plan is constitutional.

Evenwel v. Abbott: Whether the "one person, one vote" rule requires states to draw legislative districts according to voter population (rather than, as they now do, according to total population).

Harris v. Arizona Independent Redistricting Commission: whether the Arizona commission violated the "one person, one vote" rule by overpopulating some districts.

Spokeo Inc. v. Robins: whether Congress can create standing for people who do not suffer injuries.

Every one of these cases involves a conservative challenge to an existing law or practice.  If the Court sides with the challengers, conservative commentators will applaud.  If the Court sides with the government (especially if Chief Justice Roberts "defects") conservative commentators will be outraged.  Either way, nothing will be left of the conservative restraint argument (which would, I assume, favor the government in all of these cases).

So Supreme Court commentators -- especially commentators who are also presidential candidates -- need to be careful this year about excessive celebration of judicial restraint.  (I'm thinking of Jeb Bush in particular).  If you're a conservative, restraint will put you on the wrong side of all the big cases.

(As an aside, I have my doubts about the originalist basis of the challenges in most of these cases as well.  At this point, the arguments seem underdeveloped [affirmative action, standing] or non-existent [union dues, redistricting].  One hopes the cases will develop them further).

FURTHER NOTE:  Other interesting Supreme Court previews here (Ed Whelan) and here (Michael Greve).  I agree with Professor Greve that the most intellectually interesting case of the term is Bank Markazi v. Peterson (see here), which doesn't have a strong political valence and probably isn't that important except to the parties.