Bench Memos

Law & the Courts

Yoo/Phillips Chart a Path Ahead for Roberts Court

From the beginning of Chief Justice Roberts’s tenure in 2005 through the most recent Supreme Court term, Justice Kennedy almost always provided the decisive vote in sharply divided cases. For that reason, I did not think that the convention of referring to the Court by the name of the Chief Justice was fair to Roberts. But with the replacement of Justice Kennedy by Justice Kavanaugh, the Chief Justice is far more likely to have a working conservative majority that is broadly aligned with his jurisprudential vision. Indeed, he has presumably replaced Kennedy as the median member of the Court. So now—and, I hope, for many years to come—it’s time to see what a real Roberts Court is like.

In an ongoing series (five to date) of interesting and insightful essays over several weeks on National Review’s home page, law professor John Yoo and attorney James C. Phillips are setting forth a project of “constitutional restoration” for the Roberts Court—a path by which “the Court can systematically begin to restore the Constitution to its original meaning.” While no one is likely to agree with every single proposal they make, their essays deserve careful consideration. In order of appearance, they address (1) the Left’s and the Right’s different visions of the courts and distinct approaches to judging; (2) how to tame the administrative state; (3) rethinking so-called “privacy” jurisprudence on abortion and other matters; (4) protecting Second Amendment rights; and (5) restoring the original meaning of the First Amendment’s Religion Clauses.

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