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.