In this New Republic essay, oddly titled “Will John Roberts Ever Get Better?”, Jeffrey Rosen presents Justices Breyer and Ginsburg as the “most eloquent and systematic” defenders of “bipartisan judicial restraint.” I’m not kidding. A few comments:
1. With several decades of liberal judicial activist precedents on the books, Justice Breyer is now ready to preach a confused theory of judicial restraint that leaves (by design, one suspects) those precedents in place. Note his feeble defense of his (and Ginsburg’s) vote to strike down the federal ban on partial-birth abortion: “The only question for me was, am I suddenly going to overrule a whole lot of precedent? No. That’s a strong basis.” Never mind that the precedents that he saw as so weighty (the most prominent of which I discuss here) were hyper-activist and wildly incompatible with the principles that the Supreme Court applies outside the abortion arena.
2. Rosen is certainly correct that many, including some conservatives, misuse the term “judicial restraint.” But Rosen counters that misuse with his own misuse, his continued misguided advocacy of a “neutral meaning” of the term—under which any vote to strike down legislation, even when clearly compelled by the Constitution, is not an exercise of judicial restraint, and any vote, no matter how wrong, to leave legislation in place, is an exercise of judicial restraint. The terms “judicial activism” and “judicial restraint” necessarily tie to the proper role of the courts in our constitutional system, and their proper definitions depend on a sound understanding of what is, and what is not, correct constitutional interpretation. Rosen’s argument for a “neutral” definition of these terms would neuter them of their natural and useful meaning. Rosen might as well argue for a “neutral” definition, say, of “firefighter” and “arsonist”: a firefighter who sets a small fire in order to prevent the spread of a larger fire would be labeled an “arsonist”.
Even worse is Rosen’s supposedly neutral counting of laws that justices have voted to strike down. Thus, a decision like Roe v. Wade, which has usurped the powers of American citizens, and distorted American politics, for more than three decades counts has the same value in Rosen’s ledger as any other vote to strike down legislation. Indeed, because Roe has prevented any serious legislation in the abortion arena, the countless measures that Breyer and Ginsburg would vote to strike down don’t count at all against them.
3. Have Breyer and Ginsburg ever voted to leave in place laws that they don’t find politically congenial? How often? I simply can’t take Breyer’s claim to judicial restraint seriously. As for Ginsburg, I’m not aware that she’s ever claimed the mantle (how could she?); I think it’s one that Rosen is casting on her. Across the broad array of constitutional issues, it’s simply ludicrous to contend that Breyer and Ginsburg have a more deferential and restrained view of constitutional interpretation than the “conservatives” that Rosen decries.
4. Rosen characterizes Breyer’s dissent in the Seattle school case as a “tour de force,” “a passionate defense of judicial restraint with blistering criticism of the majority for distorting precedents.” Rosen’s New Republic colleague Benjamin Wittes was, I think, far more accurate (in this essay) in calling it “altogether-hysterical.”