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.

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