Now Playing at Reason.tv: Damon Root on Judicial Activism, Conservatives v. Libertarians, and More!


Should the Supreme Court practice judicial restraint?

In his cover story from the July issue of Reason, Associate Editor Damon W. Root discussed how the debate over judicial activism is dividing the conservative legal movement. Root sat down with Reason.tv Editor in Chief Nick Gillespie to discuss libertarian and conservative legal theories, judicial activism, Elena Kagan's nomination, and more.  Approximately 10 minutes.  Shot by Meredith Bragg, Josh Swain and Dan Hayes. Edited by Hayes.

Below see a 50-minute debate between Root, Doug Kendall of the Constitutional Accountability Center, and Federalist Society President Eugene B. Meyer. The debate took place at Reason headquarters in Washington D.C on June 30th, 2010.

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  1. I just can’t get enough of hearing for every case “and in a 5-4 vote the Supreme Court has blah blah”.

    Also, Root needs to tuck his shirt in. He’s right about Kelo v. New London, though, but when did the Court last overturn a precedent? I imagine it’s set in stone right now, unlike your property rights.

    I think every new federal law or regulation should be submitted to the Supreme Court’s Constitutional Stamp of Approval prior to enactment.

    1. Didn’t Citizens United overturn McConnell v FEC?

      1. What am I, a law person? That’s why I asked.

        Also, Citizens United caused the President of the United States to hawk a loogie right onto all the Supreme Court Justices in the middle of the State of the Union Address. And, I’m pretty sure the decision caused the world to end. So you won’t be seeing that again anytime soon.

  2. Libertarians favour an “activist” judiciary? “Activism” is a pc expression for perverting the law to fit your ideology, whatever it is.

    It?s quite simple, congress makes the laws and the judiciary should abhold them if they are constitutional, no ideological prism to interpret them.

    If there?s a law you disagree with, ignore it at your own peril or try and have it changed. It has to be better than some prick in the supreme court interpreting the law as an “activist”.

    1. Libertarians favor an activist judiciary whenever it restricts the authority of government beyond what is in the letter of the constitution. And disapprove of an activist judiciary when it increases the authority of the government. So yes.

      1. whenever it restricts the authority of government beyond what is in the letter of the constitution

        Could you name an example of that actually happening?

        1. I’m no Court historian but the Loving case on interracial marriage comes to mind. Anytime the court supports personal freedom like in Brown or Roe it curtails the power of government to regulate our lives.

        2. Could you name an example of that actually happening?

          The Citizens United case earlier this year.

          1. What this turkey said, ya’ crackerty ass cracker! DUH!

    2. In the libertarian case, activist judges roll back the unconstitutional actions of the Congress as a means to defend the liberty of individuals.

      In the case of liberals, activist judges become, in a sense, an extension of Congress. They pass laws by interpreting the Constitution to give the federal government a new power.

      In the case of conservatives, THERE ARE NO ACTIVIST! Unless, of course, you believe that persons have the right to put whatever substance they want into their bodies or you believe that freedom of religion also means freedom FROM religion. Then, it becomes necessary for the government to restrict individual liberty for the sake of the common good.

      1. There’s nothing wrong with people practicing whatever religion (or no religion) they choose, as long as they do it peacefully and civilly. John Stuart Mill’s “On Liberty” should be required reading for social studies or government classes.

    3. Of course Libertarians favor an activist judiciary. The libertarian movement is all about promotion of freedom; today’s so-called conservative movement (Goldwater would vomit) is all about protection of priviledge.

  3. Yes, if by “judicial restraint” you mean they should be tied to their chairs every time they invoke the Commerce Clause, international precedent, or the word “penumbra.”

  4. Just wait until the secret to immortality is discvored. Supreme Court Justice for life becomes for eternity.

    Totally irrelevant, I know, but I don’t care.

    1. If a secret to immortality is discovered nearly everything we understand about government and law and liberty and the state become irrelevant.

  5. Stephan Macedo’s approach to activism seems like the best approach that libertarians could take. See his “New Right vs. the Constitution”.

  6. A lot of this debate is just a semantic argument on what constitutes judicial activism. In my opinion, when the court legitimately overturns a law because it violated the constitution, that is not activism, but when it illegitimately overturns a constitutional law simply because they don’t like it, that is activism.

    Oh, yeah: fuck stare decisis

  7. Scalia can be more damaging to libertarianism then even Stevens was. Scalia has at least taken a rhetorical defense of liberty but then in many of his decisions he takes a statist track.

    This leaves libertarianism open to ridicule because opponents can point to Scalia and say “Look see this guy espouses liberty and his judicial deccisions gives more power to police at the expense of individual liberty’

    Of course the opponents use “and” instead of “but”, giving the impression that libertarianism does not defend individual liberty.

  8. It often happens that little beginnings have great endings

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