Judicial Restraint or Constitutional Abdication?


Writing at National Review, conservative law professor Robert F. Nagel argues that conservatives have no business asking the federal courts to overturn ObamaCare:

[S]ome on the right are sufficiently sanguine about the Roberts Court that they are eager to abandon conservatives' traditional distrust of judicial power. Using the same kind of imaginative legal arguments that leftist lawyers and judges have relied on in modern times, some thoughtful lawyers on the right propose subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there. While liberal lawyers strategize about establishing a constitutional right to gay marriage, conservative lawyers plot to create a right to "medical self-defense." The idea that constitutional argumentation can be used to achieve ambitious moral and political objectives is so attractive that Americans of all political stripes turn to the Court even when the likelihood of vindication is slim.

Nagel goes on to make the standard conservative case for judicial restraint, which includes the importance of letting democratic majorities have their way, restricting the power of unelected judges, and pursuing political change through the ballot box, not through the courthouse. In other words, Nagel thinks the courts should defer to the elected branches in the vast majority of cases, including that of ObamaCare. President Barack Obama certainly agrees. And it looks like Supreme Court nominee Elena Kagan does too.

But the courts weren't meant to be a rubber stamp. They were designed as an essential safeguard against the tyranny of the majority, which means that unconstitutional laws should be struck down, no matter how many elected officials disagree. Judicial restraint tosses this constitutional safeguard out the window.

For more on the problems with judicial restraint, see here and here. And keep an eye out for our July issue, where I'll have an article examining the longstanding division between conservative and libertarian legal activists over this very topic.