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The Myth Of Conservative "Judicial Restraint"


To follow up on my point about abortion centrists who inexplicably assert that Roe’s opponents have some sort of principled opposition to “judicial activism”, Seth Rosenthal has an excellent summary of what abject nonsense this is:

As the Supreme Court’s term nears its conclusion, columnist George Will has asserted that the John Roberts and Samuel Alito confirmation debates were all about preventing “the nation’s courts [from being pulled] even more deeply than they already are into supervising American life.” The implication is that those who championed the recent nominations believe in a limited role for the courts, while those with reservations idealize an expansive one.

This characterization, taken directly from the right wing’s playbook, sounds nice and neat. There’s only one problem: It isn’t true.


But contrary to what Will suggests, that’s just not the end of the story. Though you’ll rarely hear them admit it, today’s movement conservatives do embrace muscular courts that “supervise American life,” often in the very same cases in which liberals want courts to take a hands-off approach. The most fervent Roberts and Alito supporters would use the power of judicial review to wipe out or weaken land-use regulations, campaign-finance reform, affirmative action, and gun control. Perhaps more significant, they cheered—and hope that the additions of Alito and Roberts re-invigorate—the Rehnquist Court’s recently slowed assault on Congress’ legislative authority. Generating the highest-ever annual rate of invalidating federal legislation, the “hands-off” Rehnquist Court scotched laws safeguarding workers, seniors, people with disabilities, school children, and religious minorities and established standards threatening to scuttle even more, including important environmental achievements.

Among other things, these rulings provide that when deciding cases in which state government officials stand accused of violating a federal antidiscrimination law (such as the Americans with Disabilities Act), courts must strike the law down unless they determine that it is a “congruent and proportional” response to a demonstrable history of state-sponsored discrimination. Another landmark conservative favorite brushed aside a “mountain of data”—four years of fact-finding, studies from task forces in 21 states, and eight different congressional reports—to condemn as unconstitutional the “method of reasoning” Congress employed to enact legislation that would have protected women against violence. Talk about supervising American life.

The public evaluates judicial opinions in terms of results, full stop. The idea that any significant percentage of the opposition to Roe is based on opposition to “impositions” by the federal courts per se is just self-evidently false.

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