Strict Scrutiny

ObamaCare and the long slow death of conservative judicial restraint


In his recent opinion upholding the constitutionality of the Patient Protection and Affordable Care Act's mandate that all Americans purchase health insurance, conservative 6th Circuit Judge Jeffrey Sutton adopted what used to be a very common conservative legal position: judicial deference. The battle over ObamaCare, Sutton wrote, is "just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution" than the debate over the constitutionality of the Second Bank of the United States in McCulloch v. Maryland (1819). And in that case, he argued, "the Supreme Court erred on the side of allowing the political branches to resolve the conflict." Similarly, the fate of ObamaCare should be decided by "the peoples' political representatives, rather than their judges."

It was an eloquent ode to judicial deference. But does judicial deference matter anymore? Twenty years ago Sutton's position occupied the commanding heights of the conservative legal establishment, expressed most prominently by federal Judge Robert Bork, who argued that the "first principle" of the American system was not the protection of individual rights against overreaching majorities, but was instead the idea "that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities."

That was then. Conservatives today most likely prefer the words of last Friday's decision by the 11th Circuit Court of Appeals, which not only struck down the individual mandate as a "wholly novel and potentially unbounded assertion of Congressional authority," but also offered a none-too-subtle rebuke to Sutton's judicial restraint. "When Congress oversteps [the Commerce Clause's] outer limits," the 11th Circuit declared, "the Constitution requires judicial engagement, not judicial abdication."

What explains the shift in conservative legal thinking? Libertarians, for starters. More specifically, libertarian legal theorists, including Richard Epstein, a distinguished law professor at the University of Chicago, and Roger Pilon, the influential director of the Cato Institute's Center for Constitutional Studies. Their principled arguments for aggressive judicial action in defense of individual rights forced many conservative lawyers to reconsider their own constitutional views.

The changing political winds didn't hurt either. It's one thing for conservatives to favor judicial restraint when the judiciary leans to the left; it's quite another thing when right-leaning federal judges have the opportunity to overturn liberal legislation. Judicial restraint isn't so appealing when it comes down to the other side's legislation.

But what about the conservative justices on the Supreme Court? The split between the 6th and 11th Circuits all but guarantees that the Court will take up one or more of the individual mandate cases, perhaps as early as this coming term. Will Sutton's words carry any weight with them?

Keep an eye on Chief Justice John Roberts. Of the five right-leaning justices, his vote is the most likely to echo Sutton's. Remember that during his Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice "judicial modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade (1973), which he called "the settled law of the Land." Roberts may approach the Court's expansive Commerce Clause precedents in the same way and vote to uphold the individual mandate as a deferential application of that "settled law."

There's also Roberts's expansive view of congressional power to consider. This was exhibited most recently in U.S. v. Comstock (2010), where he sided with the Court's liberals and endorsed a sweeping interpretation of the Necessary and Proper Clause that allowed federal officials to order the indefinite civil commitment of "sexually dangerous" persons who had already finished serving their prison sentences. The Obama administration's legal defense of the individual mandate rests, in part, on an equally broad reading of that same clause.

So Roberts may very well uphold the health care law as an act of judicial restraint. Just don't expect the conservative rank and file to thank him for it. They've united overwhelmingly against the law and won't take kindly to any abdication by the chief justice. The long slow death of conservative judicial restraint is starting to speed up.

Damon W. Root is an associate editor at Reason magazine.

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    1. Does anyone else know who used to say “Heil” a lot?


    2. Achtung, baby.

    3. A mandate is ok with me because government is in the business of constructing societies. So if being part of a coherent society means having to buy health insurance I don’t see it as a negative liberty. As for those who can’t afford it. Well they can’t afford it so those with extra money are going to have to pay for them or pay them more. Simple as that.

  2. Judicial Restraint? LOL When did we ever have that in Turtle Island after the Trail of Tears?

    Constitution Ghost Dance,
    Conjuring the golden past,
    But that stuff doesn’t last,
    City-State’s deadly blast.

    I bet your Ghost Dance to former days of just law is about as successful as Wovoka’s forlorn vision.

    As Stanley Diamond says, civilization is externally invasive (Indians found that out) and internally repressive (you’re finding that out now.)

    1. the hopes and prays
      the better days
      the far aways
      forget it

      it didn’t turn out the way you wanted it to
      it didn’t turn out the way you wanted it, did it?
      it didn’t turn out the way you wanted it to
      it didn’t turn out the way you wanted it, did it?

      now you know
      this is what it feels like
      now you know
      this is what it feels like

      ~lyrics from Nine Inch Nail’s “The Wretched” http://www.youtube.com/watch?v=fNI12hvKsxI

    2. I’ve seen the ghost shirts and understand their abject failure.

    3. We called February The Moon of Sorrows for a reason, Ten Fleas.

    4. God almighty you’re boring…

  3. Can somebody get Agent Clark to drop this guy naked in the Amazon so he can live out his fantasies in the nasty, brutish, and short time left to him?

    1. How is working a couple hours a day in a Non-State society so bad?

      1. Their work week is short enough to make us drool in envy.
      2. They enjoy almost unbelievable egalitarianism.
      3. The religious gasp at their high levels of sexual freedom, experimentation, and enjoyment.
      4. They’re damn happy people, laughing freely way more than we do.
      5. Outside a division of labor, women have total social equality with men.
      6. They rarely resort to violence or war
      7. Strong social safety nets in most of their societies support the disabled, old, and in many cases, even the lazy.
      8. They usually live to be at least as old as we do
      9. Their health is more robust than ours, and they’re frequently immune to diseases ravaging their sedentary neighbors. Their social lives are rich, and they have the free time to indulge themselves.
      10. With a few exceptions, their lifestyle lets them live in harmony with the earth, relying mostly on renewable resources, and keeping their numbers at a sustainable level.
      11. Their senses appear many times sharper than their own, and many seem curiously immune to extremes of temperature.
      12. Their strength often seems unbelievable.
      13. They intelligently use their time to create more productive environments that needs little care.


      Unless that’s all bad to ya City-Slicker boyz! LOL

      1. You really are stupid.


        1. Sure, I’ve read it, but thanks for the referral anyway.

        2. I find it adorable how you are all advocating living a more back to nature lifestyle. Especially when your arguments are found here, on the internet, one of the pinnacles of modern society. If you like it so much go do it. I grew up in the mountains of Colorado, complete with well, outhouse, and potbelly stove. Not as rugged or simple as hunter gatherer societies I agree, It wasn’t much fun. AC, Internet, and indoor plumbing are wonderful things.

          1. I’m a liberal and I agree with this statement.

      2. I heartily agree with your ideas, here’s some reading material for you:


        1. BDSM is an even better analogy to civilization than is rape, because, unlike a one-time rapist of a woman, the “Dom Masters” spend much time getting their victims to admit they are property to be owned.

          You can observe austrian economists attempting the same BDSM scam when they ask:

          “Do you own yourself?”

          I always retort, “Can you use another word, other than “own,” to describe how I relate to myself? Because people own property, and I think you are trying to get people to accept a dehumanizing concept of themselves as mere property. And once that happens, it’s a slippery slope from wage slavery, and doesn’t end until you have slavery contracts with people owned as property.

          Oh, and don’t forget the Libertarian Whips, either.

          “If voluntary slavery is legal, we can consummate this financial arrangement, to our mutual gain. If not, not, to the great loss of both of us. Slave-master Rafe would never shell out the cold cash if, after he paid, I could haul him into court on assault and battery charges when he whipped me.”

          Voluntary Slave Contracts
          by Walter Block

          Libertarianism, anarcho-capitalism, austrian economics – all mere BDSM property fetish.

          As if the Christ character had spoken, “Thou shalt own thy neighbor as thyself.”

          1. If civilization is such a bad thing, why do you persist in using its computers?

            1. Same reason Jed used a Soviet AK-47 in Red Dawn.

              Same reason a prisoner uses a file from the prison workshop.

              We who appreciate life in a Non-State sociopolitical typology* (i.e., egalitarian bands and tribes) have been fighting the City-State’s invasion Since 1492.


              1. Yes, because those hunting and gathering Aztecs were gamboling across the plains way back then. All those city ruins must have been put there by a rampaging mob of European agriculturists.

                And seriously, can you go an hour without using the word “typology”? You have no arguments whatsoever. You continually reiterate the same non sequiturs. The “literature” which is cite is a joke. Just give it a rest already.

                1. The Aztecs and Mayans were not Non-State bands and tribes. They had an agricultural City-State.

                  Their civilization (City-State) collapsed for the same reason the current one that is occupying the whole of Earth will collapse.

                  The agricultural City-State sociopolitical typology is the fiat money of social organizations – like crystal meth, it’s fun, for a few, but has dire consequences.

                  Just to clarify, when I refer to Indians, as White Indian, I’m referring to the tribal Indians that whites escaped to from civilization.

                  There’s a whole chapter, including Benjamin Franklin’s writings, that show how a host of whites fled civilization and grew to appreciate a Non-State tribal sociopolitical typology. The chapter “White Indians” is found here:

                  The Invasion Within
                  The Contest of Cultures in Colonial North America
                  James Axtell
                  Oxford University Press

                  1. typology…

                    1. Freshman college stuff. Now don’t furrow your brow, this joint is a place of reason.


                    2. “Freshman college stuff.”

                      Which you’re getting wrong. I asked for your credentials, you insulted me, essentially admitting you had none.

              2. I doubt seriously that watching Red Dawn contributed to your anti-state efforts, though your writing bears a striking resemblance to the intellectual depth of its dialogue.

                1. No, but Benjamin Franklin’s observation, found in Axtell’s chapter “White Indians,” is particularly instructive to my yearning for a Non-State society:

                  When an Indian Child has been brought up among us, taught our language and habituated to our Customs, yet if he goes to see his relations and make one Indian Ramble with them, there is no perswading him ever to return, and that this is not natural to them merely as Indians, but as men, is plain from this, that when white persons of either sex have been taken prisoners young by the Indians, and lived a while among them, tho’ ransomed by their Friends, and treated with all imaginable tenderness to prevail with them to stay among the English, yet in a Short time they become disgusted with our manner of life, and the care and pains that are necessary to support it, and take the first good Opportunity of escaping again into the Woods, from whence there is no reclaiming them. One instance I remember to have heard, where the person was brought home to possess a good Estate; but finding some care necessary to keep it together, he relinquished it to a younger Brother, reserving to himself nothing but a gun and a match-Coat, with which he took his way again to the Wilderness.

                  ~Benjamin Franklin
                  Philadelphia, May 9th. 1753

                  Think of that, a man of “Good Estate,” who ran from the invasive agricultural City-State (civilization) to escape to a Non-State sociopolitical typology.

                  You’d think “libertarians” would be interested in that. But they aren’t, because they are not really libertarian at all, but Propertarians, desiring to own for themeselves the whole of Mother Earth, and even her children.

                  1. You know, for someone who claims as a big advantage for his philosophy that we’d all have to work so much less, you sure seem to have a lot of free time to type.

                    Seriously, what is you goal for posting here? You aren’t convincing anyone at all with your copious typing. What could be the purpose of all this ten fingered masturbation?

                    1. When a man wonders what is wrong with the world, and begins to see contradictions in his own philosophy, and checks his premises, and finds them wanting, and then begins an epic study to find out what’s wrong, one of the intellectual checks-and-balances is to test his new ideas with friends who know the old well.

                      That’s what I’m doing, and your contradictory economics/philosophy, debunked by empirical data from the sciences of archeology, anthropology, evolutionary biology, etal., is weighed in the balance and found wanting – still.

                      MENE, MENE, TEKEL, UPHARSIN

                    2. Good for you. You have decided that your own views are right. What a shock.

                      You haven’t discussed anything. You’ve thrown out gross assertions constantly and anytime someone points out an inconsistency in your argument (and it’s replete with them), it’s been “at least I don’t rape Mother Earth” or some such obfuscating nonsense. Doesn’t sound like honest intellectual searching to me. More like self-righteous garbage.

                    3. I decided my own views were wrong, and am changing them when presented with better empirical data.

                      I guess if you think scholarly works published by Oxford University Press is “self-righteous garbage,” have at it. Nobody said libertarians had any more intellectual integrity than fundamentalist creationist or Marxists.

                    4. Like libertarian philosophy doesn’t have inconsistencies?

                  2. Thanks…

              3. How’s that working out for you?

          2. “I always retort, “Can you use another word, other than “own,” to describe how I relate to myself?”

            I certainly can, and I invite you to relate to yourself that way over and over.

            1. At least I’m not an economic BDSM Master like Julian Simon who thinks of people as the “ultimate property.”

              Or did he say “ultimate resource?”

              That’s what the Austrian BDSM-economic professors are getting at:

              They want to use you, and make you serve well, and have you saying, “Yes, Master, I’m your property, and I like it, and I hate those Non-State sociopolitical typologies because my collar is so shiny and I’ve worked so hard serving you that you’ve provided me a velvet lining so it doesn’t chafe my skin. Such progress I’ve made from working so hard for you!”

              1. At least I’m not an economic BDSM Master like Julian Simon who thinks of people as the “ultimate property.”

                No, you’re just an idiot.

                1. How’s that No-troll Thursday working out. Good?

                1. I knew it, I’m surrounded by assholes. Keep firing, assholes!

    2. I was thinking something similar. How about we take up a collection to buy the moron a one way plane ticket?

      Bitching about technology on the internet? Too fucking funny.

      1. How about if YOU go away and quit raping Turtle Island, City Slicker?

        The agricultural City-STATIST rapist doesn’t get to decide where people can live in liberty.

        That is, if one is interested in liberty and justice. And obviously, you’re not, parroting the “love it or leave it” bully tactics of the NeoCons.

        Scratch a libertarian, and not all that deep, enough, and all you’ve got is an aggressive NeoCon.



          1. You go there then, and fulfill your “people are the ultimate property” Julian Simon ownership fetish. Maybe you can borrow some “Voluntary Slavery” whips and chains from Walter Block, an Austrian economist and fellow at the Mises Institute. Maybe you’ll even get into some Rothbardian fetish that “the purely free society will have a flourishing free market in children.” (Mises Daily)


            2. I’m hurt you didn’t mention me…

            3. “In Pre-Columbian Mesoamerica the most common forms of slavery were those of prisoners of war and debtors. People unable to pay back a debt could be sentenced to work as a slave to the person owed until the debt was worked off.[citation needed] Slavery was not usually hereditary; children of slaves were born free.

              Most victims of human sacrifice were prisoners of war or slaves.[2]

              First Nations of Canada routinely captured slaves from neighboring tribes. Slave-owning tribes were Muscogee Creek of Georgia, the Pawnee and Klamath, the Caribs of Dominica, the Tupinamb? of Brazil, and some fishing societies, such as the Yurok, that lived along the coast from what is now Alaska to California.[3] The Haida, Nuu-chah-nulth, Tlingit, Coast Tsimshian and some other tribes who lived along the Pacific Northwest Coast were traditionally known as fierce warriors and slave-traders, raiding as far as California and also among neighboring people, particularly the Coast Salish groups. Slavery was hereditary, with new slaves generally being prisoners of war or captured for the purpose of trade and status. Among some Pacific Northwest tribes about a quarter of the population were slaves.”

              Native Americans are no different than any other group of human beings on the planet. Foreign invaders have decimated indigenous populations since time immemorial. You’re not special.

      2. Irony is apparently not a concept yet recognized by preanti-societal peoples.

        1. Weird how libertarians consider Non-State sociopolitical typologies* so horrible, even non-social.

          Really weird. But, in reality, Libertarianism isn’t about liberty, it’s about grabbing more shit and telling people “Get Off My Property!”

          Libertarianism is as internally conflicted and contradictory as Marxism, it’s sister philosophy that also supports the agricultural City-STATE.


          1. Hmmm, OK, go on….

            1. Marx and Mises are both part of the Left-Right Axis of Evil.

              The Evil being this:

              Controlling all the land and the owners putting food under lock and key, thereby forcing people disestablished from the land to work for the key-owners.

              That’s agricultural City-State in a nutshell, with Marx and Mises merely squabbling over control of the key.

              (A caveat to Mises, having ownership of the key to food spread over more people is incrementally better than more concentrated control. Just like living in one prison is incrementally better than living in another prison. But, let’s be honest, civilization in all it’s political flavors is a prison.)

              1. “Marx and Mises are both part of the Left-Right Axis of Evil.”

                Evel Kneivel is in the Axis of Evil. But that’s a no brainer. Not Dr. Evil. He makes me laugh…he’s out. And don’t do what the economists say. Why? Because they like math, and math is very much a part of the Axis of Evil.

              2. WHOOPS! Now you’re into Idiot Territory! I won’t waste any more energy on you today.

                Thanks for playing!

                1. My comment was for White Lightnin’, not Contrarian.

                2. Marx supported the agricultural City-State.

                  Mises supported the agricultural City-State.

                  Both mistakenly think they can reform the institutional abuses and wither away the State, or at least bring it to heel, but their premises upon which they built their house-of-cards syllogisms have been disproven by the last 60 or so years of anthropology, archeology, evolutionary biology, etal sciences.

                  Oh, another thing you have in common with the Marxists – the inability to provide a reasonable retort.

                  1. Heal the self White Idiot Sock-puppet.

                    Try posting under Chief Running Buffet or something interesting.

                  2. And yet, the agricultural city state is the dominant form of society on Earth today. So, #WINNING from a Darwinian persepctive.

                    And your little hunter-gatherer anrcho-syndicalist colelctive, how’s that workin’ out?

                    Oh, it’s not. There’s your retort, idiot sock puppet.

                    1. Ah yes, the Butch NeoCon crowing how “might makes right,” thinking he can rape the earth forever.

                      I suppose Bernanke and the Banksters are the dominant form of society, Almanian. You’re paying taxes and getting stripped of wealth, right?

                      #BANKSTERS #WARMONGERS #BIWINNING, right? So how’s that working out for you?

                      But civilization is to life what fiat money is to finance. It’s like a cancer that kills its host.

                      Quite naturally, various civilizations, after they farm out the soil and defy nature long enough, collapse. And then the earth rapers die.

                      Right now, the domination Empire, with it’s fiat money and fiat agriculture and fiat City-Statism, is collapsing. It’s all quite natural, predictable, and recorded historically.

                      So how’s that working out for you?

                    2. “So how’s that working out for you?”

                      Still winning, thanks for asking.

              3. …dude, now I’m getting pissed…

          2. Marxism is a critical theory not so much a movement to create a society.

  4. “Remember that during his Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade (1973), which he called “the settled law of the Land.”

    Yes, judicial restraint to liberals is having a Living (meaningless) Constitution and Dead (liberal)Precedents, so the constitution cannot be allowed to block bigger more arrogant government, but liberal expansions of power must never be revisited.

    Why do reason writers tend to adopt the left’s defintion of phrases like “judicial restraint” as if they were the actual meaning of those words?

  5. Judicial restraint in the face of stolen liberties may be restraint, but it is no way to run a judiciary.

  6. I suppose we’re all supposed to just forget that Obama’s true inauguration took place in secret in the White House Skull & Bones (Harvard edition) ballroom/dungeon?!

  7. White Indian, are you by any chance looking for a job?

    1. Independently Wealthy. Envious? Don’t turn green. LOL

      1. One of those oil patch Cherokee?

        1. The Koch Brothers, who ripped off Indians for millions, get rich on that reservation oil,* and use stolen money to fund this joint.**

          And then fund libertarian economic “think tanks” that support the Elite Dominants’ abstract ownership of Mother Earth, while giving desperate fools a false hope of liberty, as false a hope as proffered by Marxism.

          *”…Koch had routinely removed more oil from storage tanks on Indian tribal lands in Oklahoma and other states than it had paid for.”

          Links to Koch Industries may prove embarrassing

          ** $285,309 received from Koch foundations 2005-2009 [Total Koch foundation grants 1997-2009: $1,786,509]

          1. …now you’re hurting my feelings…

      2. So What Indian? is “Independently Wealthy”.

        Will the ironic hypocrisy never cease?

        1. How’s that No-troll Thursday working out. Good?

          1. Is it “REASON”able to be flittering about telling people that they shouldn’t discuss important ideas like a long-proven and successful human existence within a NON-STATE sociopolitical typology?

            1. DRIIIIIIIIIINK!

            2. …OK, all better now…

        2. Everybody is independently wealthy in the Gift Economy of the Original Affluent Society.

          Scholars such as Karl Polanyi and Marshall Sahlins characterized primitive societies as GIFT ECONOMIES with “goods valued for their utility or beauty rather than cost; commodities exchanged more on the basis of need than of exchange value; distribution to the society at large without regard to labor that members have invested; labor performed without the idea of a wage in return or individual benefit, indeed largely without the notion of ‘work’ at all.” ~Anarcho-primitivism http://en.wikipedia.org/wiki/Anarcho-primitivism


          1. It is called fantasy land. All societies started out in this way but eventually something changed and they began moving away from this. I understand you will likely say it was because a more powerful group of people came in and ruined it for everyone. Where did that more powerful group come from? At some point you have to recognize that civilization is actually human nature same reason that scorpion is going to sting you.

        3. Dean,
          I am new here. How long do these Idiot Trifecta’s typically last?

          Tony appears to have faded, there are Pho Toni’s aplenty but the original appears to have left.

          Looking at White Idiot/Formatting experiment/Civilization is Occupational (all the same guy) I am starting to miss Toni.

  8. Agree to a point with ‘judicial restraint’ if that means avoidance of the judical bench to ‘make laws’. However, one of the reasons for having the SCOTUS is to ensure that Con-gress abides by the Constitution. If something is unconstitutional, restraint is an abdication of responsibility.

    1. +1

      1. bold italics bold itaics


    2. I should have read the comments before I posted since you said it better then I did.

  9. It’s all completely arbitrary anyway, why pretend that it isn’t?

  10. One of the reasons the insurance mandate is constitutional (so I’ve heard) is that it is necessary to control the cost.


    So much for that arugment.

  11. Roberts spoke of judicial restraint during his confirmation, but hasn’t practiced it since getting on the bench. He’s an utter and complete ideologue.

  12. What is judicial restraint? After FDR threatened the court with his “court packing” plan, the court abandoned more than a century of jurisprudence to assist the executive and legislative branches to expand their power, and abandon the federalist system bequeathed by the founders. Given that the Constitution is the supreme law of the land, was this restraint? If the president and congress can do anything with majority support, then why even bother to have a constitution? Restraint means respecting the Constitution first, then deferring to majority rule when the issue is genuinely ambiguous. The expansions of federal power since the New Deal were not ambiguous, but rather required rather tortured interpretations of a document designed to prevent them.

    1. Restraint means respecting the Constitution first, then deferring to majority rule when the issue is genuinely ambiguous.

      Exactly. The great advantage of common-law systems is that, by privileging precedent, they produce more predictable legal outcomes. But predictability is a vastly lower-order value than fidelity to the original public meaning of the Constitution — what the ratifying public understood they were ratifying.

      I want a wildly activist judiciary when it comes to striking down unconstitutional laws, and an utterly restrained one otherwise.

      1. “I want a wildly activist judiciary when it comes to striking down unconstitutional laws, and an utterly restrained one otherwise.”


        1. The uproarious laughter of complete fucking imbeciles like you is music to my ears.

          1. Here’s what I’d like: a car that can go 200 MPH, but won’t crash into anything.

            Also, I’d like a gun that, when you shoot it at a bad guy, blows a giant hole right through them, but if you shoot it at somebody innocent, nothing happens.

            Also, how about a hammer that drives nails through the toughest boards of wood, but doesn’t have any effect on a thumb.

            1. So, a judge who unhesitatingly overturns laws that violate the Constitution while deferring to the political branches the rest of the time is a contradiction in terms, just like those other things?

              As I said above: the uproarious laughter of absolute fucking imbeciles is music to my ears.

              1. One such judge is not a
                “contradiction in terms.”

                Theoretically, even a bench of hundreds of such judges is not a “contradiction in terms.”

                But hundreds of such judges who manage to always “uphold the constitution” (as you see it) while never impinging upon the rightful prerogatives of “the political branches” (as you see it) is, as a practical matter, absurd.

                You might as well say that you want a roster of pitchers for your baseball team that (a) always throw strikes and (b) never throw balls, plus a roster of batters that never swing and miss. It is silly, impractical, utterly conclusory wishfulness. It underscores how totally unserious you are and how unready you are to debate the questions that are actually relevant to the issues presented.

        2. Fucking ‘A’

  13. I’m firmly opposed to Obamacare, but I think judicial self-restraint is a far more important issue than national health, because we can get rid of Obamacare with the right political makeup of Congress, but we can’t do much of anything about the development of judicial philosophies.

  14. “the Supreme Court erred on the side of allowing the political branches to resolve the conflict.” Similarly, the fate of ObamaCare should be decided by “the peoples’ political representatives, rather than their judges.””
    If thats the case then whats the purpose of the third branch of government for. If you leave the decisions to the representatives without the oversight of the court then the whole constitution is useless.

  15. “allowing the political branches to resolve the conflict”

    Sounds fine, but state legislatures are political branches, too. What if Congress and a state legislature are in conflict? To whom do the courts defer?

    For that matter, what if Congress and a single individual are in conflict – eg, Congress orders the citizen detained without trial and the citizen seeks habeas corpus? To whom should the court defer – Congress, or the Constitution (which stems from the sovereign people)?

  16. “Judicial restraint” on Constitutional issues presumes that the SCOTUS is a lesser, subordinate branch of government that must defer on Constitutional issues to its superiors.

    It is, therefor, wrong. Each branch has an equal duty, and equal authority, to uphold and enforce the Constitution.

    1. This.

      Else you have “…the Supreme court interprets the Constitution except when they let the Congress tell how to interpret the Constitution…” which is tripe.

  17. Sutton is unaware that we have a constitution, and thus of the reasons for having it.
    “the Supreme Court erred on the side of allowing the political branches to resolve the conflict.” Similarly, the fate of ObamaCare should be decided by “the peoples’ political representatives, rather than their judges.”

    He apparently thought he was ruling on the fate of Obamacare, not on its constitutionality.
    According to him, from now on, anything congress gives itself permission to do, it can do.

    Another progressive piece of shit.

    1. Libertarians are progressive pieces of shit too. They keep telling me about all the progress they perceive that the aggressive agricultural city-State has given them.

      And they think it’s progress that we’ve come so far from Non-State sociopolitical typologies that our ancestors lived in for a couple million years, so successful and rich that their society is being called “The Original Affluent Society.”

      But now we have progress, and libertarians are as progressive as the Progressives.

      As is working harder, less health, less leisure, diseases of civilization, wars of annihilation, more hierarchy and rules and bosses are progress.

  18. con?sti?tu?tion
    save from three-fifths

    Can anybody work up a good drum circle beat for that?

    1. If you’re looking for a drum circle, you might try HuffPo.

      1. No, no – that’s a “circle jerk”.

        1. Move! Grab your Constitution rattles and dance!

          Ghost Dance by Robbie Robertson & The Red Road Ensemble

          And maybe someday ReasonTV will get 500,000+ views on one of its yodletube videos.

      2. Libertarians and HuffPo are both believers that the aggressive agricultural City-State has given us Progress.

        But being self-called Progressives, and accepting and being totally honest the very real aggression of the City-State (civilization,) they’re much more successful in the Empire’s glorious free market of ideas and getting themselves elected into the ruling hierarchy.

        Really, do libertarians even have 2 dog-catcher officials anymore these days?

  19. No, but I’ve got this really good tortoise shell rattle I’ve been working on.

    Does that help?

    1. Yeah, that’ll work on the following verses.

      save from banksters’

      banksters wrote it
      not liber-elves
      see how wells
      it serves themselves

      trail of tears

      privation of weak
      private props seek
      entitle that land
      entitlements stand

      never victim

      now turned on whites
      economic frights
      turn out the lights
      banksters blights

      White Man Ghost Dance

      Ok guys, you just gotta dance harder then those lazy Indians of 1890, back in the glorious days of mass free market theft, and the City-State will change its spots because of the power of a piece of paper. Go paper-bugs!

  20. Sutton is unaware that we have a constitution, and thus of the reasons for having it.
    “the Supreme Court erred on the side of allowing the political branches to resolve the conflict.”
    Nike Mercurial Vapor Superfly FG Football Soccer-Red/Silver
    Nike Mercurial Vapor Superfly FG Football Soccer-White/Black/Pink

  21. There’s the other side to all of this — a wildly activist judiciary that supports anti-constitutionalism and statism, and decides to really fuck shit up.

  22. I’m sorry, but I think Mr. Root mischaracterizes “judicial restraint” (and Judge Sutton misunderstands it). It is not abject deference to whatever Congress decides. It means “allowing the political branches to resolve the conflict” when the subject of that conflict is properly within the purview of the federal government. In such cases the courts properly defer to the political process. But when Congress presumes to extend its reach beyond the scope of its Constitutional powers no false notion of “judicial restraint” obligates a judge, even a “conservative” one, to defer to that decision. If that were the case there would be no purpose to having judicial review at all. Congress’ assertion of a clearly extra-constitutional power should properly be struck down by any judge, conservative or otherwise, and notions of “judicial restraint” don’t come into play at all.

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