Bench Memos

NRO’s home for judicial news and analysis.



It stacks the deck against conservatives to include only invalidations of *federal* laws. That excludes every time the Court strikes down a local display of the Ten Commandments, a state ban on partial-birth abortion, a state death-penalty law, etc. If the federal government enforces federalism limits on the Congress, the test counts that as activism. If the Court subverts federalism by striking down local practices, the test excludes that altogether.


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