At Reason, Damon Root: Ted Cruz, Judicial Activism, and 'Useful Idiots for Progressive Statists'. An excerpt:
If you examine the actual legal arguments made by prominent conservative legal thinkers (as I do in my recent book Overruled), you will find that it is the conservatives who routinely adopt legal positions that were first invented or pioneered by the progressive left. It is conservative advocates of judicial restraint, for example, who consistently invoke the writings of Progressive hero Justice Oliver Wendell Holmes. Similarly, it is conservative advocates of judicial restraint who say that the New Deal Supreme Court was correct when it stopped protecting economic rights from government infringement. Conservative Justice Antonin Scalia even went so far as to cast a vote in favor of the New Deal's expansive interpretation of the Commerce Clause in the 2005 medical marijuana case Gonzales v. Raich.
Conservative SCOTUS critic Ted Cruz, meanwhile, recently proposed "an amendment to the U.S. Constitution that would subject each and every justice of the United States Supreme Court to periodic judicial retention elections." Not coincidentally, that bright idea was first popularized on the national stage by the granddaddy of all progressive statists, the trust-busting, warmongering ex-president Theodore Roosevelt. …
Ed Whelan responds at NRO: On Libertarians and ‘Useful Idiots’.
Root’s first point is that “conservative advocates of judicial restraint” join progressives in broadly deferring to progressive democratic enactments. I don’t dispute the point, broadly stated. But most of us who are “conservative advocates of judicial restraint” see judicial restraint as supplementing originalism, not as substituting for it. (See, e.g., the “Third” point in this essay of mine). That means that, unlike progressives, we will recognize clear limits on governmental power. So, insofar as Root is concerned about deference to progressive democratic enactments, he still ought to prefer judicial conservatives to judicial progressives.
Root also observes that [Clark] Neily was “one of the libertarian lawyers who conceived, litigated, and won the landmark Second Amendment case known as District of Columbia v. Heller.” Yes, he was—and Heller is a model of what libertarian and conservative originalists can achieve together. It thus supports my observation that libertarians have a far more promising alliance with conservatives than with progressives.
Posted at 6:58 AM