It’s Time to Ditch “Judicial Restraint”
by Timothy Sandefur
Left and right agree that activist judges are bad. But the concept of activism is ultimately quite fuzzy, and it may even interfere with the work that judges should be doing. When courts defer too much, the legislature’s power grows beyond its constitutional bounds. Answering the question of how active our judges should be requires answering what exactly they should be doing; Sandefur’s answer is that judges should strenuously enforce the Constitution against the other branches of government. Failing to do so not only leaves bad law in place, it thwarts the will of the people as expressed in the Constitution.
Activism and Restraint
by Kermit Roosevelt III
Kermit Roosevelt III discusses judicial activism and restraint. He finds neither is always appropriate: A theory of when judges properly strike down laws will not necessarily hang on how many laws they strike down. Judges, though, are not necessarily better at deciding economic questions, and they may do harm either by upholding or by striking down a law. Either of these harms may fall on powerless minorities. Identifying legislation that is simply the product of favoritism or rent-seeking is an enduring challenge, not one that can be settled with a theory of activism or restraint.
Why Judicial Restraint Best Protects Our Rights
by Sandhya Bathija
Sandhya Bathija argues that restrained courts have done best to protect rights from the interests of the wealthy and powerful. Among the three branches of government, Congress has done the most to rein in the power of big business, and this is overwhelmingly for the good of the people. That result shouldn’t be so surprising, as Congress is the most democratic branch of our government. Sandefur’s vision of the judiciary would paralyze the federal government and would constitute “an assault on people with disabilities, racial minorities, women, LGBT Americans, and the poor.”
Let’s Keep (Some) Judicial Restraint
by David R. Upham
David R. Upham argues the Founders intended a significant democratic element to our Constitution; fidelity to it requires some judicial restraint. The branches of the federal government are coequal, and deference to elected legislatures is consistent with the Founders’ principles. It is also reasonable, in that legislatures cannot act before they have cleared significant procedural hurdles, increasing the chance that their work will reflect considered judgment about the Constitution. Examples of improper but democratically enacted legislation oppressing minorities so far advanced have been inapposite.
- Professor Roosevelt Blurs the Categories by Timothy Sandefur
- The “Dogma of Deference” Misstates the Issue by Kermit Roosevelt III
- The Dogma and the Class System by Timothy Sandefur
- This Isn’t Your Founding Fathers’ Judicial System by Timothy Sandefur
- Judicial Activism and Civil Rights by Sandhya Bathija
- Have Faith in the People by David R. Upham
- Rational Basis Scrutiny Is Just a Stupid Rock by Timothy Sandefur
- Democracy, Liberty, and a Legitimate Court by Sandhya Bathija
- Learn to Love Footnote Four by Kermit Roosevelt III
- Progressives’ Consistent Redefinition of Rights by David R. Upham
- It’s Not Your Father’s Progressivism Either by Timothy Sandefur
Discussion among all participants to continue through the end of the month.