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The Redefinition of Restraint


This Slate piece about potential Rehnquist replacements–which may be extremely relevant by the time you read this–is generally useful; I also agree that Luttig is the most likely candidate. But boy this drives me up the wall:

Luttig is often cast as a mini-Scalia. The characterization fits him well. In his judicial opinions, he sometimes rejects the statesman model in favor of cutting sarcasm and has shown a tendency to adhere to his own restrained method of judging even on the rare occasions when it leads him to unpopular or anti-conservative positions.

No, no, no, a thousand times no. First of all, Scalia simply does not practice anything that can be called “judicial restraint” in a non-tautological sense; he is not at all deferential to legislatures. Secondly, his recent opinion in Raich is only the most recent example of the way he is willing to ignore his own past writing in order to go along with a policy result he likes (and is also further evidence that his much-maligned colleague Thomas is more principled and consistent.) It’s really remarkable how, four decades after the retirement of Earl Warren, the media still conflates “judicial restraint” with “conservative jurisprudence,” despite the fact that this conflation is neither logical nor empirically justified…

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