Bench Memos

The Other Judicial Activism

I am grateful to Ed Whelan for his continuing series (see just below for the latest) on liberal judicial activism. I’m glad, too, that he reminds us with the adjective “liberal” that the left has no monopoly on judicial activism. A further reminder comes in the latest Weekly Standard, where Robert F. Nagel, one of our finest scholars of constitutional law, takes up the latest advanced thinking in conservative judicial activism—the thin and crumbly theory of a constitutional right to “medical self-defense” put forward by UCLA’s Eugene Volokh. Nagel’s article is also a veritable primer on how legal scholars’ pet notions become the “law of the land.” Eminently worth reading.


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