Bench Memos

NRO’s home for judicial news and analysis.

Re: Judge’s Harsh Words for High Court


I’m inclined to think that the Institute of Justice’s Paul Sherman is right when he calls the rational-basis test a “judicial invention” that “[n]othing in the Constitution requires.” But I wish that he would offer some explanation of what higher level of judicial review of economic rights he believes to be “meaningful” and of how that level of judicial review is required by the Constitution (which provisions? what interpretive methodology?). Without that, his call for “judicial engagement” strikes me as empty rhetoric.

As for the IJ report hyperlinked in Sherman’s byline: I explain here how the report resorts to statistical flim-flam to try to show that there is no problem of judicial activism.


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