Legal Conservatism Does Not Have Anything to do With “Judicial Restraint,” And It Never Did

Matt beat me to it, but while I agree with 90% of what she says I think that Dahlia’s framing of the debate in this article concedes way too much (as much of her argument itself makes clear.)   Republicans do not want an  “immobilized judicial branch,” and this doesn’t accurately describe the Roberts Court.    Indeed, most of the big cases of recent years — Kelo, Parents Involved, Heller, Citizens United — have involved the most conservative members on the Court wanting to rule the acts of elected officials unconstitutional while liberals have argued that they should be upheld.     And a look at the data shows that  this is no anomaly — there’s no non-tautological sense in which conservative judges are more “restrained” than liberal ones. And, historically, conservative judicial activism is more common than liberal; judicial activism (although not so much because liberals are less disposed to judicial power as because the courts tend to be conservative.)   The Roberts Court’s systematic favoring of already over-represented interests is hardly limited to cases in which it refuses to intervene; rather, it quite frequently intervenes directly on their behalf.

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