Roberts And Judicial Restraint

Jul 13 2012 @ 10:33am

This essay by Joel Alicia is well worth reading in full. It basically defends Roberts' deference to the legislative branch as a throwback to the early period of conservative legal theory, when restraint was the watchword:

The overwhelmingly negative response to the chief justice’s analysis shows just how far the movement has distanced itself from the old theory of restraint, embracing instead a view that cares less about how many statutes are struck down than about why they are invalidated. For the chief justice, his opinion is the epitome of judicial modesty. For the dissenters, it is the height of judicial arrogance. Roberts thinks his actions are compelled by respect for the coordinate branches of government; the dissenters see his actions as flouting the Constitution that called that government into being. And at this moment in the history of the conservative legal movement, Roberts stood alone.

That was roughly my take as well. Via Greenhouse, who has this precious line:

Extraneous question: Is the liberal love affair with Anthony Kennedy — which should have ended five years ago with his preposterously patronizing opinion in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 and suggesting that women are incapable of acting in their own best interests — finally over?

Ponnuru sneers back.