Reflecting on last week's decisions, Randy Barnett (guest blogging at Instapundit) says for future appointments:
The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint.
More from Professor Barnett here (rejecting Jeb Bush's call for Justices committed to judicial restraint).
I agree, if the conservative concern with last week's decisions is that they don't reflect the rule of law. As I've argued, originalism is a way (in my view about the only way) to have a rule of law as opposed to a rule of judges. (To be sure, it does not guarantee a rule of law, for several reasons, but it offers the possibility of the rule of law). And of course, done right it does not guarantee conservative results.
UPDATE: Further thoughts from Professor Barnett: Constraint vs. Deference: Two possible meanings of ‘judicial restraint’.
But what does “judicial restraint” mean? There are two quite different possibilities:
- Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
- Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.
What is of utmost importance is that these are not the same thing.
And in conclusion:
In short, because of both the ambiguity of “judicial restraint” and its historical association with deference to legislative majorities, demanding “a proven record of judicial restraint” is very likely to lead to judges who disappoint conservatives and libertarians. Republicans should not be fooled again. And the only way to avoid being fooled again is to demand judges with a proven commitment to the original meaning of the text — by which I mean the whole text, not just the parts that lead to the results they like.
My further thoughts: The problem with judicial restraint (meaning simply deference to legislative majorities) as an interpretive philosophy is that it isn't an interpretive philosophy. No one (except those who don't believe in judicial review at all — and they are unlikely to be appointed to the Supreme Court) thinks the Court should always defer. Rather, they think the Court should mostly defer, unless something points strongly the other way. But what is that "something"? Unless "judicial restraint" judges have some interpretive philosophy (such as originalism) informing their decisions, nothing tells them what can overcome the principle of restraint. So, most likely, they will abandon restraint when intuitively there seems a moral imperative to do so — that is, in the most important cases. So paradoxically the advocate of restraint becomes unrestrained when it matters most.
To be clear, I'm not saying this always happens, just that it's a risk. And there are very good restrained originalist judges, such as the Sixth Circuit's Jeffrey Sutton (who deferred in both the first ACA case and in the same-sex marriage case). But I'm skeptical of an approach that says, I'll be restrained except when I think it's really important not to be. And I think that's the way a lot of judges look at it.
Posted at 6:43 AM