I wrote about Damon Root, an advocate of what I would describe as libertarian judicial activism, in this space yesterday. He responds today.
He clarifies that he is not saying that judicial restraint was the invention of progressives. He says he is merely saying that the progressives influenced later conservatives who championed judicial restraint. He writes: “Ponnuru must be unaware that Robert Bork himself proudly owned up to the decisive influence that Progressive legal thinking had on his own intellectual development.”
I must? Root is responding to a post in which I wrote that “Holmes and progressives sometimes spoke in favor of judicial restraint” and “their work has influenced later conservatives. (For what it’s worth, I think that much of influence has been baleful.)” I’ll add now, though, that some of that influence has been for the good: The progressives were wrong about many things, but not about the limited role the courts should play in setting public policy.
I have no quarrel with the banal thesis that progressive legal thought influenced later conservative jurists. I don’t think that gets the libertarian legal project very far—let alone, as I discussed yesterday, that it converts John Marshall and James Madison into posthumous allies of it.