The Judiciary – Conservative/Libertarian Battleground

What should the Supreme Court do? Since at least the 60’s, Liberals have been accused of being “activists”, with conservatives arguing for judicial “restraint”. In law school, I wrote a long treatment of this debate, tracking the idea that progressives started, and conservatives like Bork and Scalia embraced. has a great video explaining the concepts, and the problems.

Damon Root’s article is worth reading. The video points out that it’s time for deference when your guy is in power, and that judges get all activisty when they’re in the minority. Very similar to the larger pattern of both parties cozying up to libertarians right up until the get back their majorities. There’s a longer debate featuring Federalist Society President Eugene Meyers, and Doug Kendall of the Constitutional Accountability Center.

Is the pink one supposed to be Thomas? Are peeps racist? I'm so confused!

The role of the Court isn’t to be a kind of super-legislature weighing the wisdom of policies, but to be a limitation on the power of the congressional and executive branches, and by extension, our own popular prejudices. Their main job is to preserve the constitutional arrangement of enumerated but unlimited powers of government, off-set against unemumerated but sacrosanct freedoms retained by the states and individuals. Conservatives and liberals alike have failed at that task for decades.

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