Sunday's Wisconsin State Journal featured an article by Dee Hall including, among other things, my comments and those of Marquette law professor Scott Moss on judicial activism and restraint. The piece is well done. I have only two comments.
First, Scott argues that a belief in judicial restraint is "simplistic and wrong " noting that judges decisions "make law" whether they want to or not. Put in that way (and I recognize that Scott can build a more sophisticated case), that argument is, I can't help it, "simplistic and wrong." People who argue for restraint do not contend that discerning the meaning of a text is mechanical or something about which reasonable people cannot differ. The debate is not about whether judges will clarify the law or even about "striking down" laws. It is, rather, about how you go about the interpretive task. To what extent do you regard constitutional and statutory text as binding rather than suggestive and to what degree are you skeptical about interpretive methods can give courts more or less unfettered discretion.
Second, the citation to studies that treat "striking down laws" as synonymous with activism is really beside the point. A judge who subscribes to a more restraintist judicial philosophy will not be freed from the need to review whether the legislature has acted consistently with the constitutional text. It is just that it is the text - and not a philosophical framework that loosely uses the text as a jumping off point - is the standard of constitutionality.
But, most importantly, I commend Dee Hall and the Wisconsin State Journal for writing about this.
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