Still More on Judicial Restraint and Judicial Review

Jack, to answer your questions , as pithily as possible, I understand judicial restraint as underenforcement of constitutional norms, not the position that there are few or no constitutional rights or only those constitutional rights that reflect my political preferences. And you are right to point out the difficulty of making comparisons to foreign constitutions; a conversation for another time, perhaps. But enough about me!  I’d rather hear about your views than talk about mine, which are warmed-over leftovers of the work of the constitutional law professors I cited earlier.* You seem to have something new to say.

In earlier posts, you said, or seemed to say, that if Dahlia doesn’t like the way that Supreme Court justices “invent rights,” then she should start or join a social movement (“If you don’t like the living Constitution you get, you really should be working harder to get the national politics you like, because that’s pretty much how the Constitution changes over time.”). This puzzled Dahlia , who has been operating under the assumption that part of her job was to spot errors and inconsistencies in the court’s decisions: “If you really mean it that ‘social movements’ will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. … So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold.”

In our latest exchange, I tried to make a case for judicial restraint. The argument was a normative argument (judicial restraint is good) but it also depended on an empirical claim (good for both political sides, so they can, in principle, agree to it). Your response in your second-to-last post  (yes I did fall down the rabbit hole into Balkinizationland) was:

Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. …

If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric’s) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.) …

Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn’t always caught up with the reality.

And a great deal more in this vein, very much in the spirit of your response to Dahlia.  If it is true that judges will (for example) exercise judicial restraint if and only if (?) changing substantive agendas favor that posture, then there isn’t much point in discussing whether judicial restraint (however defined) is good or bad, is it? Or in encouraging judges to exercise it? Or in encouraging elected officials to seek out judges with this inclination?  Nor does there seem to be much point (Dahlia’s concern) in criticizing judges for deciding cases inconsistently with their professed judicial philosophies, other than, perhaps, to point out to them that they have deviated from party orthodoxy.  We can do no more than wait for substantive agendas to change.

This is certainly one view. The decline of judicial restraint was not only determined; it was over determined. And if it should reappear, that would be determined or overdetermined as well. Am I to be faulted for thinking that you were caught in the snarls of the determinacy paradox ?  I am glad that you reject this view.

But then, what is your view? I am trying to reconcile the following half-understood fragments.  1) A suggestion that Supreme Court justices do politics; does that mean narrow partisanship is unavoidable, or is it possible that justices could be made to see that some judicial philosophies are better, for the public and for themselves and their parties, than others?  2) Is the version of originalism that you have been peddling such a philosophy? Or is it just of theoretical interest (the “right” way to interpret the Constitution even if no judge ever adopts it)? Or perhaps a strategy for liberal or progressive judges who would like to hoist conservatives by their own petards? 3) How do these ideas fit with your political science style discussions, which emphasize the importance of social movements, politics, appointments, and the like?  Easy on the humor please: we are literal-minded here in flyover territory.

*Jack’s Balkinization co-blogger Mark Graber notes correctly that in my earlier post I was referring only to law professors who have advanced the views I am defending here.  For the work of political scientists in a similar vein, see his post here .