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Greg Weiner on Judicial Restraint (with Some Thoughts in Response) [UPDATED]
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Arise, Ye Prisoners of Scalia.  He begins:

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

Harvard Law Professor Mark Tushnet, noting that a majority of appellate judges are now Democratic appointees, observes as much at the Balkinization legal site. He urges liberals to rise up out of the “defensive crouch” in which they have been stooped for “generations” of conservative domination of the courts. The method by which he tabulates these “generations” is obscure, but the question his call raises is clear: On what grounds, precisely, is he wrong?

Professor Weiner then criticizes conservative/libertarian scholars who have abandoned judicial restraint for "judicial engagement":

Conservative and libertarian advocates of judicial engagement, by contrast, could argue with Tushnet about the law—no small thing, of course—but, having urged full exploitation of the courts, not about the question of institutional legitimacy.

Yet it is strange to exempt the courts from the question of legitimacy that those generally suspicious of power—libertarians prominent among them—would naturally ask of other branches of government. For every other branch, we set, or claim to, norms of institutional legitimacy (marking out what they may or may not do regardless of whether they have the capacity or prudential justification for doing them) and we look to the levers of institutional power that can maintain those norms.

And in conclusion:

It is true, of course, that advocates of judicial engagement can answer the Left flank with legal reasoning, and that their legal reasoning is sharp, incisive, and certainly superior to what the disciples of Brennan and Marshall propose. But as Tushnet shows, this is the very definition of a parchment barrier: the equivalent of giving the presidency and Congress, for example, no checks on one another save persuasion. Madison considered such an approach to the separation of powers, one in which each branch would be merely cajoled to swim in its own lane. He rejected it. So do the libertarians, at least with respect to the presidency and Congress. It is precisely because they reject such charitable readings of authority for the political branches that they advocate judicial engagement to constrain them. The problem is their resistance to comparable constraints on the judiciary.

By contrast, a Madisonian riposte to Tushnet’s activism would be for the other branches, backed by a restored republican morality among the people, to stop according the Supreme Court both mystical powers and the sacred deference that attends them. There is ample evidence that that body’s ambition reaches as far as the frontier of its options. Those frontiers, having been opened by unblinking deference, need to be rolled back. Impeachment is probably too bold a hope; a more aggressive use of jurisdiction-stripping and other measures is not.

But political restraints on the judiciary are less available in the hour of need because they were spurned in the hour of opportunity. The irony is that, by intending to narrow the strike zone for the political branches, which can be restrained by accessible political mechanisms, constitutional libertarians have widened it for the one branch on which they would place no controls. It is difficult to see how a Left-leaning judiciary, perhaps soon to be crowned by a Supreme Court with a fifth liberal, can be confined except by methods that many advocates of judicial engagement have placed out of ideological bounds.

Though I have great respect for Professor Weiner, I have some serious doubts about this post (and not just because it's not clear what Scalia has to do with it).  I think it is not correct to say that judicial engagement scholars and advocates resist constraints on the judiciary.  Although its obviously a diverse group, I would say (a) judicial engagement does not equate to no political checks on the Court or (even more so!) attributing to it "mystical powers and the sacred deference" (I'm quite sure this does not describe Randy Barnett, for example), and (b) many judicial engagement scholars (including Professor Barnett) endorse originalism as a constraint on courts.

Professor Weiner seems to say that the only line one can draw and defend is judicial restraint.  I do not understand why originalism is not as plausible a candidate.  Why can't we say: the problem with Tushnet's position is that it sees courts as enforcers of political morality, not as enforcers of the Constitution's original meaning?

Weiner would presumably respond that judges can't be trusted to be originalists.  I agree.  But they also can't be trusted to adhere to judicial restraint.  Judicial restraint is a very hard sell to judges, because it leaves them with nothing constitutionally interesting to do.  (Doubly so for constitutional lawyers).  Originalism might be more attractive because it calls for an active (albeit constrained) judicial role.  At least, it seems as plausible an avenue for introducing some internal constraint on courts as calls for strong judicial deference to the political branches.

 I don't mean to endorse some of the more aggressive conservative/libertarian versions of judicial engagement, which do indeed seem to approach judicial enforcement of political morality.  But it is not a binary choice between extreme engagement and extreme restraint.  Scalia's restrained engagement based on originalism is a defensible intermediate position.  One can adhere to it without opening the door to Professor Tushnet.

(Note: Professor Weiner's post has an interesting and sophisticated string of comments, including one from Evan Bernick -- a likely target of the post -- who promises a response).

UPDATE:  Here is Evan Bernick's response: Does Judicial Engagement Empower Progressives? Answering Professor Weiner’s Challenge