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Go to Front Page Modern Judicial Restraint

JONATHAN CHAIT JUNE 28, 2010

Modern Judicial Restraint

Ian Millhiser catches Sen. Jeff Sessions expressing the embodiment of the modern Republican judicial philosophy: demanding aggressively intervene to overturn laws they don't like, while leaving in place laws they do like. First Sessions announced:

The American people are concerned about their courts. They’re concerned about a growing expansive government that seems to be beyond anything they’ve ever seen before. And they’d like to know what their judges might have to do about it. So I think that’s kind of where we are.

Then, seconds later, he added:

The question is: does the judge understand that they can’t utilize the power, the lifetime appointment, to redefine the meaning of the constitution — to have it promote an agenda in an activist way that the American people won’t vote for.

Both parties are fairly instrumental about the law. They favor judicial activism in issue areas where they're politically weak, and support it in areas where they're politically strong. The difference is that Republicans tend to alternate their demands for judicial activism with a lot more pious declarations of fealty to judicial restraint.

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4 comments

“ My favorite comment by Jeff Sessions about Elena Kagan is where he said that he is concerned that she will advance her liberal politics as a Supreme Court judge and that she won't follow "the law." This is unintentionally hilarious. ”

- liberal reformer

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“ "The question is: does the judge understand that they can’t utilize the power, the lifetime appointment, to redefine the meaning of the constitution — to have it promote an agenda in an activist way that the American people won’t vote for." Sen. Jeff Sessions is using Republican code language. His real meaning, in my opinion, is "Brown v. Board of Education" and similar or complementary court decisions would never have been endorsed by the electorate. Activist judicial decisions are the greatest threat to the traditions, mores and life-styles of "real Americans," those that believe in the Constitution, as interpreted by Sen. Sessions and his compatriots. Or should I say, "Sen. Sessions and his Confederates?" ”

- LawrenceGu

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“ Wasn't this one of the guys leading the charge to overturn the passed health care law in the courts? I have said before one of the amazing assets the current GOP has is to turn on a dime in a manner of seconds. "Oceania has always been at war with Eastasia. We have never been at war with Eurasia." ”

- MikeB.

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“ What to make of today's ruling in McDonald v. Chicago? It can be construed as an act of judicial activism in line with that of the Warren and Burger courts' extension of much of the rest of the Bill of Rights to defend individual rights against state infringement. Yet the remaining champions of the older rights-extending activist agenda stood against McDonald, while the supposed champions of "restraint" picked up the Warren banner of inventing new constitutional rights clearly not understood to exist at the time of textual adoption. What troubles me about McDonald is the sheer legal sloppiness of the ruling. There was no majority for any one theory of why Chicago gun laws may be unconstitutional; 4 justices applied the 14th Amendment, while a 5th relied on the privileges and immunities clause. The former approach is actually a reasonably small-c conservative and small-l liberal approach; indeed one almost required by any reasonable understanding of contemporary 14th Amendment interpretation following Heller. The latter is just kind of batty, though rooted in what would qualify as a radically revisionist jurisprudence of racial redistribution if it were proposed in a university rather than from the bench by Clarence Thomas. Because there was no majority basis for decision, lower courts and legislators are left with no clear guidance when assessing the constitutionality of any firearms legislation, including Chicago's. Far better for one or two of the liberals to have accepted Heller as settled law and joined the 4 conservatives in applying it to states via the 14th Amendment, if only to provide for more stability in the law. Heck, by joining to make a true majority for that interpretation, SC liberals could have significantly reduced the opportunities for future conservative activism on this issue. Instead, the law remains highly unsettled, future appeals to the SC are guaranteed, and McDonald will now serve conservatives as a ratchet device to yank the law even further to the right on guns. I'd also like to have seen someone in the liberal bloc propose standards of constitutionality for post-Heller 2nd Amendment jurisprudence rather than continuing to try to wish Heller away. A standard as simple as one declaring that the individual right conferred by the 2nd Amendment requires that federal or state laws not prevent an individual from keeping and bearing arms for the purposes of personal or civic self-defense or for sporting activities. Under such a rule, bans on handguns would not pass muster, which is really all most conservatives care about. But bans on many other classes of firearms - automatic weapons, large-capacity magazines, rocket launchers, large-caliber ammunition - as well as many kinds of regulations - registration, licensing, permits, barrel length requirements, monthly purchase limits, background checks, safe-storage rules - would be permissible. In light of such a rule, it may become easier, not harder, to impose new gun-control measures such as firearms licensing and registration in states that do not have them. ”

- rhubarbs

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