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Faux Judicial Restraint


Dahlia Lithwick and Barry Friedman have a very strong article about the various camouflages used by the Roberts Court. There’s nothing new about most of this stuff — selecting favorable cases, hollowing out precedents that are nominally being reaffirmed, and the like have an extensive history on the Court — but it’s always important to see through it.

I especially like the point about in Part 1 about the gutting of precedents, one of the more pernicious aspects of the Roberts Court’s “minimalism” I’ve attacked at some length. I’ll leave most of this for a follow-up post, but one thing their otherwise excellent discussion of Carhart II leaves out the fact that Kennedy’s opinion claimed that it was not overruling Carhart I, despite the fact that the statute that was being upheld was virtually identical to the one the Court had previously struck down. There’s no case that better sums up the Roberts fetish for not explicitly overruling precedents that are being overruled that was memorably identified by Justice Scalia:

Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.

Pretty much the Roberts Court in a nutshell.

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