Bench Memos

NRO’s home for judicial news and analysis.

Re: Obama and the Supreme Court


Ruth Marcus of the Washington Post thinks that Steve Calabresi and I have become “unhinged”—Calabresi for arguing in the Wall Street Journal that “the very idea of liberty and the rule of law are at stake in this election” and me for stating in this NRO essay that “the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president.” 

Unfortunately, Marcus doesn’t see fit to acknowledge, much less address, the core arguments that I make.   Like so many who have suffered the detriment of a modern legal miseducation, Marcus takes for granted the legitimacy of unconstrained “living constitutionalist” judging and makes no effort to consider how such judging can be reconciled with the actual system of representative government that our Constitution creates.

Calabresi and I are far more vulnerable to the charge that we have understated how bad the situation is.  After decades of lawless judicial activism, it could fairly be argued that the rule of law and the American experiment in representative government have already suffered such grievous losses that Obama’s election would merely put an end to any hope of their restoration.

Tags: Whelan


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