Bench Memos

RE: Sunstein

The Left just loves to create new words to project their views on conservatives. “Frankfurterians” and “Thomisticians”? How absurd. In my view, Frankfurter’s judicial philosophy doesn’t lend itself to a single-word label. Thomas is, on the other hand, an originalist, or as close as one is likely to ever be one. As for the Court striking down this legislation or that legislation, Sunstein unwittingly (presumably) appears to be an “oligarchian.” Since judicial review is not a constitutional power but one that the Court has implied from its structure (starting with Marshall), justices should, first and foremost, be careful in determining which cases to even consider. This much Marshall himself made clear. When adjudicating, the Court should show great restraint by only addressing that which is discernable from the Constitution’s text to avoid making policy (which the elected branches are fully capable of doing) and undermining the Constitution’s structure (that is, leaving it to the elected branches and the people to fill in the gaps as much as possible). That’s not to say the Court should not opine against legislation it considers in violation of the Constitution, having already embraced judicial review. And I know this drives liberals and libertarians nuts, but Congress still retains the constitutional power to limit the judiciary’s jurisidiction and make-up, among other things. Congress’s reluctance to exercise this and other legitimate powers in this regard is political not constitutional. Judicial supremacy is not mandated by either the Constitution or the concept (or exercise) of judicial review.

As an aside, I’ve always felt that if the Court had not concocted constitutional arguments for justifying virtually all forms of economic regulation (including environmental laws) over the last 70 years, the amendment option would have been more aggressively and perhaps successfully pursued by Congress. After all, it’s not as if the framers left future generations with armed revolution as the only recourse to expand (or limit) the federal government. The amendment option wasn’t intended to be essentially the dead-letter it is today. Besides, if big government is so wildly popular with the public, as Sunstein and others insist, the super-majority requirements for amending the Constitution would have been achievable. Same with abortion and the rest of the Left’s economic and cultural agenda. But, alas, these days they can’t seem to win national elections with their agenda. Hence, Sunstein the judicial “oligarchian” — which, from this day forward, I shall refer to as “Sunsteinian.”


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