Bench Memos

Clark Neily’s Terms of Engagement—Part 6

See Parts 1, 2, 3, 4, 5

My posts have highlighted my disagreements with Clark Neily, and I’ve neglected to praise him for his achievement in writing a clear, accessible, intelligent—and, yes, engaging—book that does an excellent job making an argument that, alas (for the reasons I’ve spelled out), I believe to be badly misguided. In further defense of Neily, I think that it’s fair to say that in his book he’s been effectively carrying out his job responsibilities as an accomplished senior litigator at the Institute for Justice. Indeed, it’s perhaps best to understand the book as an extended brief that aims to condition the environment to make judges more receptive to the claims of IJ plaintiffs.

I do wish that Neily—and IJ more generally—had instead decided to embrace the paradigm of judicial restraint and to argue that the virtue of judicial restraint stands between the opposing vices of judicial activism and judicial passivism. Indeed, I don’t think it surprising that judges who invent rights that aren’t in the Constitution also ignore those that are. Nor is it surprising that a citizenry that is infantilized by the excesses of an activist judiciary won’t be accustomed to exercise due care in implementing those responsibilities that are left to it.

More broadly, whatever the limitations of judicial activism, judicial restraint, and judicial passivism as terms of political discourse, they signal important separation-of-powers concerns about the proper role of the courts in our constitutional republic, and they are a lot more meaningful than the empty and clumsy terms of judicial engagement (oh, when’s the marriage?) and judicial abdication.

Most Popular

Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Elections

Diversity Panic Hits the Democratic Field

Stop me if you’ve heard this one before. An Asian guy, two black guys, three white women (one of whom spent much of her life claiming to be Native American), a Pacific Islander woman, a gay guy, a Hispanic guy, two elderly Caucasian Jews (one a billionaire, the other a socialist), a self-styled Irishman, and a ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More
White House

Is Trump the Only Adult in the Room?

Donald Trump certainly is mercurial at times. He can be uncouth. But then again, no president in modern memory has been on the receiving end of such overwhelmingly negative media coverage and a three-year effort to abort his presidency, beginning the day after his election. Do we remember the effort to ... Read More
White House

Is Trump the Only Adult in the Room?

Donald Trump certainly is mercurial at times. He can be uncouth. But then again, no president in modern memory has been on the receiving end of such overwhelmingly negative media coverage and a three-year effort to abort his presidency, beginning the day after his election. Do we remember the effort to ... Read More