Friday, July 27, 2007

Redefining judicial restraint

The left's latest move in judicial politics is to redefine the concept of judicial restraint. This is necessary because no one thinks that judicial activism is a good thing. The reason has nothing to do with talk radio and conservative demagoguery. It's rooted in the implications of judicial review. If we give judges the power to frustrate the decisions of elected officials, then they need to base that power in something other than their own policy preferences; something that has itself been legitimized by popular assent.

Jeffrey Rosen is probably the principal popularizer of a supposedly "neutral" definition of judicial restraint that reduces it to a question of striking down statutes (or, I suppose, invalidating executive actions.) There are three problems with this approach.

First, it is rooted in an assumption that there can be no substantive definition of restraint that is rooted in an understanding of constitutional or statutory text because the texts are too elastic to bear any definite meaning. This is a point of view that has the most attraction for certain law professors and law students who, I think, are overly impressed with their verbal dexterity. More fundamentally, it is a premise that restraintists don't share. Interpreting law is not a mechanical process and reasonable people can differ, but texts are not just convenient starting points.

Second, it elides the debate over restraint and activism (which is really a debate between competing schools of interpretive theory) into a debate over judicial review itself. That's a worthy debate, but restraintists don't oppose judicial review.

Third, it runs contrary to a central precept of judicial restraint, i.e., that judges may not ignore clear constitutional commands. If a legislative or executive action falls runs afoul of such a command, the refusal to strike it down is "activist" in the sense of exercising authority from some illegitimate source.

Another part of this move is to conflate judicial restraint with stare decisis. These concepts may be related but they are not the same and restraint does not mean adhering to erroneous precedent.

Thus, Arlen Spector is upset that the Roberts court has abandoned or weakened precedent and wants to investigate the Roberts and Alito confirmation hearings. But Roberts and Alito never said that they would always follow precedent or that it must always be expanded and never narrowed.


Billiam said...

Does that mean judges should'nt find "penumbra's of emanations" where they don't exist? I guess, only if they're appointed by, shall we say, other than Liberal Presidents.

Anonymous said...

I think we should get back to what "impeachment" really meant and maybe accountabilty would cause more restraint by judges and representatives.

Prior to Clintons attempted impeachment, impeachment could be for poor behavior in or out of the job and not for only criminal offences.

I think more judges would think twice about acting on there own (not restrained by law) if impeachment could be the result of there poor behavior.

Anonymous said...

Rick, the Supreme Court is under no obligation to follow precedant.
To do so would be to ignore many many decisions that today would be considered absurd. As you know, the Supreme Court is charged with applying the Constitution to the specifics of the case before them.
Not to rule on similar cases that were ruled before.
Lets cut to the chase. Precedant is the religion, if the LEFT agrees with the precedant.

Anonymous said...

Rick, here's where your notion leaves the rails:

"Interpreting law is not a mechanical process and reasonable people can differ, but texts are not just convenient starting points."

So, we all agree that text can require interpretation/application/construction, etc. You appear to distinguish between restraint and activism by declaring that the latter school views the text merely as a "convenient starting point" for interpretation. The notion, of course, is that the good guys, the restraintists, have means of interpretation that is not so cavalier and has more integrity, whatever it might be.

So, we all agree that the same task is at hand and your point devolves into a vague, single-clause, characterization of the opposition as merely using the text as a starting point, which of course is a throwaway insult with no substance. Like all of these discussions, it comes down to no more that "by restraint, I mean I like the outcomes, by activisim, I mean I don't."

Whoop-dee-doo. And, by the way no school of jurisprudence states "Hey everybody,let's get drunk and ignore clear constitutional commands! C'mon! It'll be fun!"

Are there a lot of judges thatignore the details of the law and simply try to do what they think is "right" in a given situation. Sure, they're called sloppy and lazy and come in all ideological flavors. That's a quality control issue and nothing more.

But, Rick, let's speak more plainly. The real point of the schools of jurisprudence you purport to speak for is not so abstract as you suggest. The iudea is to build into the judicial function protections against a new judge or a new generation of judges from taking the law in a new direction of their choosing based on their own preferences. The focus is largely on continuity in the development of law the importance of ensuring that the development is an institutional matter not a personal one.

The main instituional guardian on this score is a practical one - stare decisis. The notion that previous precedent should be reconsidered carefully and for only the most compelling reasons is what protects us from abrupt changes in direction based on individual personalities and preferences.

And, of course, the Roberts court can't tear up settled precedent any faster. One may agree and deem the precedents to have been wrong. But, no one can deny that the simple fact of 2 new personalities on the court has had the law lurch in a new direction, leaving a trail of overturned precedent.

Again, you may agree with these folks on the merits, but don't talk about them being restrained when 2 individuals have set about to reinvent the law simply yto me their own sensibilities.

Rick Esenberg said...

Anon 1:27

I don't think that we all agree that text is particularly constraining. Roe and its progeny, for example, have nothing to do with any text anywhere unless you think the 9th Amendment is a permission slip for government by the judiciary.

Read Jeffrey Rosen's recent profile of Anthony Kennedy in The New Republic. I grant that it was a hit piece, but, unless it was also fabricated, it's not clear that Kennedy believes himself to be constrained by anything other than what he believes to be his own highly nuanced ethical sensibilities.

Read Justice Breyer's description of the purpose of Establishment Clause jurisprudence in Van Orden and see if it (or for that matter Justice O'Connor's endorsement test) does anything but free judges to do whatever they will.

As for the Roberts court, I hardly think that Parents Involved was a radical departure from precedent. The Court has swung back and forth on Brown's two legacies for years. I agree that WRTL and the partial birth abortion case are hard to reconcile with McConnell and Carhart but 5-4 decisions that are but a few years old are hardly etched in stone.

What happened last year is that Roberts won round 1 in the battle for Kennedy. We'll see who takes round 2.