The New York Times Flip-Flops on Judicial Restraint


A few days after the Supreme Court finished hearing oral argument in the legal challenge to the Patient Protection and Affordable Care Act last month, The New York Times ran an unsigned editorial denouncing the Court's conservative justices for their apparent willingness to strike down President Barack Obama's health care overhaul. "For anyone who still thought legal conservatives are dedicated to judicial restraint," the Times huffed, "the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices."

Pretty forceful words. In fact, they strongly echoed the arguments made by well-known legal conservative Robert Bork, the former federal appeals court judge who was unsuccessfully nominated to the Supreme Court in 1987. In his bestselling 1990 book The Tempting of America, Bork argued that the "first principle" of the American system wasn't the protection of individual rights, it was majority rule. "In wide areas of life," Bork wrote, "majorities are entitled to rule, if they wish, simply because they are majorities." For the courts, this meant adopting a pro-government posture of judicial restraint—precisely what The New York Times wants the Supreme Court to do in the health care case.

Yet just two days ago the Times ran another unsigned editorial that offered a very different take on judicial restraint. In that piece, the paper attacked GOP presidential hopeful Mitt Romney for asking Bork to head up his campaign's Justice Advisory Committee. According to the Times, Romney's acceptance of Bork and his "extreme views" reveals the shortcomings of Romney's own approach to the law. So what's so bad about Bork? Here's the Times again:

[T]he confirmation shed considerable light on Mr. Bork's extreme views. As a critic of what he called the "imperial judiciary," he contended that, except when the Constitution expressly says otherwise, the court must defer to the will of the majority. Otherwise, he said, it makes "corrupt constitutional law" that is constrained only by the personal values of justices, leaving government subject to the "tyranny of the minority."

To recap: The New York Times attacks the current Supreme Court for abandoning judicial restraint and "signaling its willingness to replace law made by Congress," then turns around less than a month later to attack Judge Bork for advocating judicial restraint and saying that "the court must defer to the will of the majority."

Shouldn't the Times' editorial board try a little harder to avoid openly contradicting itself like that?