Mitt Romney’s Flawed Agenda for the Supreme Court

In a recent article at SCOTUSblog, New York University law professor Richard Epstein wondered if Mitt Romney’s selection of Paul Ryan as his running mate signals a broader return to limited government principles by the GOP, including when it comes to the selection of future Supreme Court justices. Epstein writes:

What will the future bring?  My hope is that the Republicans will run a principled campaign that stresses the need for sustainable social institutions, so that the task of national repair can take place not only on the executive and legislative fronts, but on the judicial front as well. There are many domestic issues that command attention but none is more important than the simple question of how big a government? And for what ends?  Much of the blame for the current economic impasse comes from the Supreme Court’s penchant to defer to the political branches when they hatch their multiple schemes of special taxation and special subsidy.  Change that attitude and over time a profound reorientation of our constitutional culture might help the United States get out of its current economic and social malaise. Do business as usual and there will be economic stagnation – the new normal – stretching into the indefinite future.

The Supreme Court’s repeated failure to act as any sort of meaningful check against regulatory overreach is indeed a very serious problem. But I’m not so sure Romney and Ryan are prepared to offer a viable solution. As Epstein noted in his article, judicial abdication on economic matters is a bipartisan affair. Both liberal and conservative justices now routinely “give both the federal and state government carte blanche on general economic regulation.”

That approach was evident most recently in National Federation of Independent Business v. Sebelius, where Chief Justice John Roberts joined the Court’s liberal bloc and cast the deciding vote to uphold Obamacare, a decision he justified as a matter of judicial deference. “It is not our job,” Roberts wrote, “to protect the people from the consequences of their political choices.” So much for checking the misdeeds of the other branches.

Yet if you visit Mitt Romney’s official campaign website, you’ll learn that if elected president, “Mitt will nominate judges in the mold of Chief Justice Roberts.” That’s not exactly reassuring.

It's also notable that the Romney campaign selected former federal appeals court Judge Robert Bork to head up its Justice Advisory Committee, which advises the campaign “on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” Bork is of course a revered figure among legal conservatives, but he’s also a strong advocate of the very same judicial philosophy practiced by Roberts in the Obamacare case. Indeed, Bork has long endorsed a majoritarian version of judicial restraint that grants lawmakers vast leeway to regulate both social and economic matters. As Bork once put it, “In wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities.”

So when it comes to the pressing issue of judicial pacifism at the Supreme Court, Romney and Ryan still appear to be on the side of business as usual.

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  • Pro Libertate||

    Roberts? Really, that's close to inept politics. Did they miss the whole Republican reaction to the Obamacare decision?

  • Scruffy Nerfherder||

    Romney is a big government Republican. All he cares about is that there's someone there to rubber-stamp his agenda.

  • Pro Libertate||

    Sure, I get that, but it's not necessary to use, as your example, the "conservative" justice with whom your party is most pissed.

  • Scruffy Nerfherder||

    At least you know he's being honest

  • ||

    Dude, Mittens realizes the simple truth that no one gives a shit what his platform is. A vote for him is a vote against Obama. He will win or lose depending on the dissatisfaction with Obama come election day. That is all.

  • Pro Libertate||

    TEAM BE RULED wins again, eh?

  • ||

    Of course. They've designed it that way.

  • Pro Libertate||

    It's a great scam. You have to give them that. If this were fiction, I'd stop reading, thinking it was too unbelievable.

  • BarryD||

    At least he didn't say, "In the mold of Justice Breyer."

  • Scruffy Nerfherder||

    Ginsburg 2, South African Constitutional Boogaloo

  • BarryD||

    Ginsburg has occasionally fucked up and ruled in ways that libertarians support.

    Breyer, on the other hand, is the crazed supervillain of the Court. Read his opinions. The Heller dissent was literally the most intellectually dishonest piece of writing I have ever read. I was genuinely dumbfounded. IIRC even the Unabomber's screeds were more "reality-based."

  • ||

    "if elected president, “Mitt will nominate judges in the mold of Chief Justice Roberts.” "

    What else do you need to know?

  • T||

    As Bork once put it, “In wide areas of life, majorities are entitled to rule, if they wish, simply because they are majorities.”

    Because the tyranny of the majority is acceptable tyranny. Kein mehrheit für die mitleid, indeed.

  • rac||

    If it's constitutional, it isn't tyranny. To a certain extent, we are at the mercy of the idiots we elect. They are given powers. They will always try to increase that power. It is up to the SCT to limit the accretion. Stare decisis is the stumbling block. I would like to see any nominee for a position on the STC say they won't give deference for the stupid Commerece Clause cases of the past, wihch have allowed congress to slowly, and ever so gently, place their bootheel on America's face. Ain't happening.

  • mad libertarian guy||

    I would like to see any nominee for a position on the STC say they won't give deference for the stupid Commerece Clause cases of the past, wihch have allowed congress to slowly, and ever so gently, place their bootheel on America's face.

    Actually, the entire conservative bloc in SCOTUS rebuked the commerce clause in the Obamacare case. Even Roberts.

    Unfortunately, Roberts' decision opened up another door through which the legislature, and the courts after them, can take their turn gang banging us by telling the world that the bill which went out of its way to sell itself as anything but a tax that it's a tax.

  • califernian||

    Anyone who thinks the GOP bigwigs actually WANT the courts to restrain judicial overreach is delusional.

    The GOP leadership is jumping for joy over the Obamacare decision, and not just because they can make hay with it. They are drooling at the possibilities.

  • califernian||

    restrain REGULATORY overreach. damn you brain, stay focus.

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