Supreme Court

Ted Cruz, Judicial Activism, and 'Useful Idiots for Progressive Statists'

The fight over SCOTUS heats up.

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Last week Sen. Ted Cruz (R-Texas) chaired a Senate subcommittee hearing devoted to finding "possible solutions" to what Cruz described as the dire problem of Supreme Court "lawlessness," "imperial tendencies," and "judicial activism." In Cruz's view, the Court has gone flying off the rails because it failed to adhere to the venerable legal philosophy known as judicial restraint.

In response to that hearing, Roger Pilon, a libertarian legal scholar and director of the Cato Institute's Center for Constitutional Studies, argued that Cruz had gotten the problem exactly backwards. Yes, the Supreme Court frequently makes the wrong decisions, Pilon acknowledged; but the reason why the Court gets it wrong is not due to a lack of judicial restraint. The reason why is the failure to follow "the proper interpretation of the law [or constitutional provision] before the court."

Another libertarian legal scholar, Randy Barnett, recently made a closely related point. The misguided emphasis on restraint "is exactly the problem with the judicial philosophy promoted by many conservatives for the past 30 years," Barnett wrote. He added:

For years, "judicial restraint" has been primarily about not thwarting the will of "democratic majorities." There are myriad doctrines to accomplish this. For example, you adopt a "presumption of constitutionality" that cannot be rebutted. Or find a "saving construction" of a statute to avoid finding it unconstitutional. Or you "defer" to administrative agencies' interpretation of statutes. Or you make a statute "work" as the "legislature intended" (even if that means ignoring the plain or natural reading of its words).

Naturally, Cruz's conservative allies don't appreciate this negative assessment of their work. For example, when the libertarian lawyer Clark Neily, a senior attorney at the Institute for Justice, shared Pilon's article on Twitter last week, he received the following response from conservative legal writer Ed Whelan, a prominent advocate of judicial restraint:

It's true that the libertarian legal movement has joined forces with liberals in certain areas of the law, such as the fight over gay rights. In 2003, for instance, most libertarian lawyers and legal scholars cheered when the Supreme Court struck down Texas' law banning private "homosexual conduct" between consenting adults. I suppose you could call the outcome of that case "progressive," though it hardly seems to count as "statist."

But there's a much bigger problem with Whelan's claim. If you examine the actual legal arguments made by prominent conservative legal thinkers (as I do in my recent book Overruled), you will find that it is the conservatives who routinely adopt legal positions that were first invented or pioneered by the progressive left. It is conservative advocates of judicial restraint, for example, who consistently invoke the writings of Progressive hero Justice Oliver Wendell Holmes. Similarly, it is conservative advocates of judicial restraint who say that the New Deal Supreme Court was correct when it stopped protecting economic rights from government infringement. Conservative Justice Antonin Scalia even went so far as to cast a vote in favor of the New Deal's expansive interpretation of the Commerce Clause in the 2005 medical marijuana case Gonzales v. Raich.

Conservative SCOTUS critic Ted Cruz, meanwhile, recently proposed "an amendment to the U.S. Constitution that would subject each and every justice of the United States Supreme Court to periodic judicial retention elections." Not coincidentally, that bright idea was first popularized on the national stage by the granddaddy of all progressive statists, the trust-busting, warmongering ex-president Theodore Roosevelt. In 1912, when TR was in the midst of mounting a third-party presidential campaign under the Progressive Party banner, he endorsed the popular recall of both judges and judicial opinions. "If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion," Roosevelt wrote, "they have the right to see them enacted into law and become a part of our settled government policy."

As for Whelan's dismissal of Clark Neily as a "useful idiot for progressive statists," I'll just note that Neily happens to be one of the libertarian lawyers who conceived, litigated, and won the landmark Second Amendment case known as District of Columbia v. Heller. Neily's handiwork is nobody's idea of progressive statism. Unfortunately, the same thing cannot be said for the handiwork of legal conservatives who keep promoting judicial deference above all else.

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85 responses to “Ted Cruz, Judicial Activism, and 'Useful Idiots for Progressive Statists'

  1. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).

    The only branch of government that doesn’t actively shun its responsibilities is the executive, which is grabbing all the power it can in the vacuum created by the other two.

    1. Part of the imperial overreach that Cruz was talking about was the rewriting of legislation to sanctify executive branch power grabs.

  2. Any libertarian that thinks and imperial SCOTUS will be a net advance for liberty is a useful idiot for the proggies.

    1. I don’t see it that way. A net gain is achieved if they disallow more laws than they allow. Bad legislation is enacted without them lifting a finger. The worst they could do is give Congress their blessing.

  3. Judicial restraint is an abomination.

  4. but the reason why the Court gets it wrong is not due to a lack of judicial restraint. The reason why is the failure to follow “the proper interpretation of the law [or constitutional provision] before the court.”

    I really don’t understand the bickering here. Isn’t a proper interpretation of the constitution and intent a form of judicial restraint? Take Obergefell, a case which basically everyone on here agrees with the ruling. The opinion was like 99% feelz with some token constitutional verbiage thrown around. Something about the right to express someone’s identity? That’s where the problem with restraint lies to me. I know that dicta is not binding, but the SC and other courts seem to go out of their way to expand/pervert legal definitions (There is no right to an identity, free speech of course covers this. Right to identity is like a right to healthcare.) instead of interpreting laws and being legally boring but cautious not to take a mile where an inch was appropriate.

    1. Yes, but that isn’t what the court means by Judicial Restraint. They mean “deference to the elected representatives and the will of the people.”

      What conservatives mean by Judicial Restraint is “make rulings that comport with our conservative views”. Specifically, “we don’t like abortion, so Roe v Wade’s ‘right to privacy’ is activism.” And “we didn’t like busing to end segregation, so that’s activism.”

      I think the libertarian definition of restraint would be “the courts should hold the federal government in check and not allow the congress and the president to exercise any powers not explicitly authorized by the constitution.” But the neocons and socons would never go for that, because even though it wipes out all of the social programs they hate, it also wipes out all of the nanny-state stuff they love.

      The one thing the left and right agree on in this country is that they do not want the supreme court to closely follow the constitution.

      1. Ok, so this is one of those weird word games that “judicial restraint,” to me, as someone who isn’t the intellectual equivalent of playdoh, means something completely different that everyone else.

        I had understood that definition before (re: not interfering with legislative/executive activity), but had since been led to believe that it meant what I referred to.

        1. Pretty much. There’s not an agreed-upon vocabulary for this shouting match, which is one reason why it’s been going on for a century.

      2. The de facto role of the supreme court is provide a patina of legitimacy to government power grab that are clearly unconstitutional.

        1. It sure seems that way lately.

    2. Isn’t a proper interpretation of the constitution and intent a form of judicial restraint?

      Well, you’d think that, wouldn’t you? But it’s always those darn activist judges striking down unconstitutional laws, so.

  5. Spot the Not: wacky last words

    1. I done told you my last request … a bulletproof vest.

    2. Hurry up, you Hoosier bastard, I could kill ten men while you’re fooling around!

    3. I guess I’ll never finish that game of solitaire.

    4. I did not get my SpaghettiOs, I got spaghetti. I want the press to know this.

    5. I am truly sorry. That is all. Let’s get this show on the road. One more thing, Viva Mexico, Viva Mexico.

    6. Kiss my ass.

    1. I know 2,4, & 6 are correct.

      I am going to guess 3.

      1. 2, 4, 6, 8 who do we appreciate?

        Derpy! Derp! Derpy!

        Go Woodchippers!

    2. I miss the days when the nots were obvious.

  6. Spot the Not: last meals

    1. Four fried chickens, a can of Coke, dry white toast, and an orange whip

    2. Lobster tail, steak, apple pie, vanilla ice cream, 7 Up, and watching The Lord of the Rings film trilogy

    3. A single olive with the pit still in it

    4. Two pepperoni and sausage pizzas, three servings of chocolate ice cream, and three six-packs of Coca-Cola and Pepsi

    5. Well done filet mignon smothered with mushrooms, fried chicken breasts, a salad with French dressing, sweet potato pie with whipped cream, French fries, collard greens, onion rings, cornbread, broccoli with melted cheese, biscuits and gravy, and a cherry Coke

    6. Two chicken fried steaks smothered in gravy with sliced onions; a triple meat bacon cheeseburger with fixings on the side; a cheese omelet with ground beef, tomatoes, onions, bell peppers and jalape?os; a large bowl of fried okra with ketchup; one pound of barbecue with half a loaf of white bread; three fajitas with fixings; a Meat Lovers pizza; three root beers; one pint of Blue Bell vanilla ice cream; and a slab of peanut butter fudge with crushed peanuts.The prisoner’s request was granted, but he said he wasn’t hungry and refused the meal

    1. Well done filet mignon

      This monster definitely belonged on death row.

    2. Jesus Christ! It’s 1! That’s so fucking easy!

      1. Oh, you sure about that?

        1. Those lines sound like they were uttered at a soul food restaurant in Cook County Illinois. /narrows gaze.

          1. Maybe I picked that one precisely because it sounds like something out of the Blues Brothers.

            It’s sort of like the time I picked this Ted Kennedy quote:

            “Dad, I’m in some trouble. There’s been an accident and you’re going to hear all sorts of things about me from now on. Terrible things.”

    3. 1 is from the Blues Brothers.

    4. Number 1. It comes, mostly, from the Blues Brothers.

      1. Its all from The Blues Brothers. John Candy ordered 3 orange whips at the concert near the end of the movie.

    5. 1 is the Not. In retrospect, I should have gone with my initial plan, which was to create a last meal based on the poem Sarah Cynthia Silvia Stout Would Not Take the Garbage Out.

      1. +1 for Shel Silverstein!

    6. Well done filet mignon

      No wonder somebody wanted to kill him. Was it the chef?

  7. Jesus Christ! It’s 1! That’s so fucking easy!

  8. The concept of the “right to be left alone” was first put forth and promoted by Louis Brandeis. Not really remembered as much of a libertarian…

    1. I’m just completely going by the seat of my pants here, but I’m gonna bet that people believing they have the right to be left alone long predates Brandeis. Or written history for that matter.

      1. Lassiez nous faire?

    2. And it was in the context of preventing the press from publishing your “private” information.

      1. Statists gonna state…

  9. It seems to me that the ultimate point of failure of the constitution is that party loyalty is much greater than institutional loyalty. Checks and balances only work when office holders care about the institutions in which they serve and are motivated to maintain the freedom and power of those institutions.

    1. You also need a press that gives a shit and a literate populace.

    2. Also problematic: when party loyalty is disguised as maintaining the integrity and respectability of the courts.

    3. This

    4. The failure is not in the constitution, insofar as there is no set of rules that will work perfectly when enough people don’t know or understand the rules and, perhaps more importantly, don’t even know or understand why the rules were important.

      IOW, it isn’t so much that the rules allowed some form of abuse, but that people support the abuse. The more they do that over the generations, the further the boundaries of abuse will expand, and the greater the tolerance will be. When you find yourself where we are now, lots of folks will literally cheer as their rights are infringed. They don’t understand that failing to protect the right for “some entity they have been taught to hate” is the same as not protecting it for themselves. All they know is they get to ‘Watch as someone-you-like DESTROYS someone-you-don’t!”, so there is much rejoicing.

      It isn’t that the office holders stopped caring, it is that the office holders could still become office holders even if they didn’t care. At first it was in little ways, and they still had to pretend to care about even those, now it is it blatant, and they are lionized for their courage in doing it.

      I don’t know how you keep each successive generation from forgetting more and more about why liberty is important, and what it takes to protect it. I do know that history has a number of examples of societies that collapsed after their people forgot what was important about the foundations of their society, though.

    5. Actually, I don’t think it’s the office holders. It doesn’t really matter if the office holders care, because if the people did they’d remove the office holders, or ideally pay attention and not vote for them to start with. If the people cared, they’d care about people who did their job and demand better from those who don’t. As long as the voters decide they’d rather be lied to, then only liars will run. As the voters decide that only people who give them what they want are important then those are what will run. There’s a reason every politician from every party follows the exact same “formula” to run..it’s because it works.

  10. If you examine the actual legal arguments made by prominent conservative legal thinkers (as I do in my recent book Overruled), you will find that it is the conservatives who routinely adopt legal positions that were first invented or pioneered by the progressive left. …[I]t is conservative advocates of judicial restraint who say that the New Deal Supreme Court was correct when it stopped protecting economic rights from government infringement.

    Which explains why the first time you wrote about him, 90% of the commentariat insisted Kurt Lash was a “leftist.”

  11. “If a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion,” Roosevelt wrote, “they have the right to see them enacted into law and become a part of our settled government policy.”

    The only problem with this notion is that his proposed solution is to coerce the courts into allowing majority rule.

    The US system of law already allows T.R’s exact desires…. just not via the mechanism of replacing recalcitrant judges. All that needs to happen is for the people to amend the constitution.

    1. But that’s, like, really hard!

    2. The majority of the people wanted to intern Korematsu as well.

  12. Cruz’s idea about electing SC justices won’t get adopted, so I have to ask why he’s pushing it?

    When the election is over, we’ll stop hearing about it.

    I want to like Cruz, but if he’s going to wank off like this without doing anything constructive…

    What *would* be useful would be a statute (not a constitutional amendment) providing that in certain legal areas which the federal courts have politicized, jurisdiction in such cases will be reserved to the state courts, because if we’ve dropped all pretense of treating these issues as legal issues, and instead make them issues of policy, then the matter should be decided the way all policy issues should be decided – by the people or their representatives.

    So if the federal courts declare that they will decide (say) abortion or marriages cases based on policy considerations, not law, then Congress should give the state courts exclusive jurisdiction of these cases, so that *elected* policymakers, not *unelected* ones, can make the decisions.

    In those areas where the federal courts are content to act as courts of justice, not policymaking bodies, they should be able to keep their jurisdiction.

    If Cruz got behind *that,* he’d have my support.

    1. Why would federal courts adhere to such a statute, rather than interpreting it as unconstitutional?

      1. If Congress had balls, they’d impeach any federal judges who dared ignore specific Congressional limits on their jurisdiction.

        It’s really that simple. If federal judges think they can get away with stuff without being impeached, they’ll do it. If impeachment becomes a genuine threat, the federal judges will back off.

        1. Okay. I think you’re getting a genuine constitutional crisis on your hands if something like this were to “work,” though. Amendment seems better.

          1. I think we *already* have a constitutional crisis.

    2. I wonder if that would fly. I’d bet that the courts would strike such a law as unconstitutional.

      I suppose if you tried to do a “camel’s nose” strategy where you narrowly tailor limits on federal court jurisdiction to a specific federal law you might have some success that could later be built upon. Sort of a “Gonzales/Raich” strategy in reverse.

      Still, based on my observation of the court, they are going to decide every case based on their personal policy desires and then use all the power of legal scholarship they can muster to back their way into the decision they wanted, regardless of the actual statutes, constitution or legal precedent.

      1. Congress has the authority under the constitution to limit court jurisdiction. IIRC, the last time they exercised that power was in the fifties.

  13. Wolves and a sheep,wolves and a sheep.

  14. Yes, the Supreme Court frequently makes the wrong decisions, Pilon acknowledged; but the reason why the Court gets it wrong is not due to a lack of judicial restraint. The reason why is the failure to follow “the proper interpretation of the law [or constitutional provision] before the court.”

    So, if Cruz is asking why the Court doesn’t restrain itself, and the answer is because the Court doesn’t like what the Constitution says–then why does that make Cruz wrong?

    Are we just talking about different interpretations of “restraint”?

    1. Yes, I think that is exactly it. Those of us who are leftovers from the fights of the 60’s and 70’s view “activist” courts as those who make up new law out of whole cloth. Like when they take over a city and start deciding where kids are going to go to school. That’s pretty activist.

      So in our world “restraint” would mean the courts having some sense of limits on their power and not doing that.

      But somewhere along the way “activist” became such an attractive invective that it began to be used for “decisions that I don’t like”. And “restraint” became “decisions that I do like”.

      Roberts very explicitly espouses a form of “restraint” that means “deference to other branches of government”, where the court does back-bends in efforts to find justification for new exercises of federal power.

      Unfortunately for our sound-bite culture, “restraint” and “activist” are completely orthogonal to “correct” and “wrong” on constitutional issues.

  15. When we write the next constitution, judicial review needs to happen prior to the bill being passed into law. Leave the ability to review it again, but the bullshit ability of the Congress/President to pass blatantly unconstitutional laws and the citizenry having to live with them until you can show damages and then wait years and spend millions getting it through the process is another abomination.

    It would also have the added benefit of significantly slowing down the ass raping lawmaking process.

    I’d also look at the concept of precedent. Precedent allows the court to slowly change the meaning of the Constitution over time. Every law needs to stand on it’s own, wrt constitutionality, regardless of prior rulings. Courts don’t get to ammend the Constitution…only interpret it.

    Precedent also gives a shit-ton of power to lawyers at the expense of the common man. Anyone can read and interpret the constitution/law as written, but you need to pay someone exorbitant amounts of money to use their secret decoder ring to tell you how the Constitution’s been fucked with by justices over the years. When the law becomes so complex that the people it applies to cannot possibly understand it without a blood sucking lawyer, you already live in tyranny.

    And there should be a provision to hang Supreme Court Justices in the public square if 7/10 of the state legislatures agree that their ruling was unconstitutional (only partly kidding).

    1. A lot of this makes sense…showing that you’re not a jackass 24/7.

    2. I gotta agree with this. (the review part, not the hanging part) The whole “standing” concept seems to guarantee that major harm will be done by our government. Heck, even members of congress have no standing to challenge the administration’s actions in violation of the law. The opposition should certainly be able to challenge the constitutionality of a law before it goes into effect.

    3. That’s a decent start. I’d also add

      1. Tricameral legislature( original Senate and House, plus another chamber voted on nationally with proportional representation)

      2. Break the executive branch up into 3 different offices, each with it’s own separate duties.

      3. State nullification of unconstitutional laws, because ultimately, asking one branch of the Federal government to limit the power of the Federal government is a fools errand.

      1. “1. Tricameral legislature( original Senate and House, plus another chamber voted on nationally with proportional representation)”

        I need to smoke a cigarette in the afterglow of reading that. Can you imagine the howls of despair from Mitcharry McReid and Johnancy Boelosi?

        And the idea of just breaking up the executive into head of state/head of government like the Brits do has always seemed appealing, moreso after the rise of the selfie-taking uber-celebrity we currently have posing as president.

  16. I am so sick of all the bickering about the Supreme Court. Like the rest of the Federal government it has gone awry. The Court was set up to decide if laws written by congress or executive orders issued by the President are Constitutional. PERIOD. End of discussion. The racist bastard Lincoln destoryed this country and the Progressives both Republican and Democrat are nailing the lid on the coffin. It is time to disband the Congress and Court and let the American people decide on a new form of governmrnt. This one is broke and beyond repair.

    1. You know who else was a racist Bastard?

  17. This entire debate is just people talking past each other. Cruz and his side are angry about substantive due process. They see the court using substantive due process to legislate from the bench. Indeed, that is pretty much how it has worked.

    The Root side in contrast is worried about economic rights. They rightly point out that post Lockner the court has been okay with the government trampling over economic rights as long as the government can provide some rational reason, no matter how far fetched to justify doing it. Meanwhile, the court has used various levels of higher scrutiny under the rubric of substantive due process to protect “rights” the court values. Root and company are right to find this infuriating and are asking that the court start treating economic rights like every other rights and subject violations of those rights to a higher level of scrutiny.

    The Root side is arguing within the context of substantive due process and asking that it be expanded to cover economic rights. The Cruz side is arguing that the entire framework of substantive due process needs to go. Neither side is really addressing their arguments to the other or answering the other side’s argument.

    1. Which side you find more compelling comes down to which thing outrages you more; the courts failure to protect economic rights or the court’s invention of rights and using those rights to legislate from the bench. Both sides point to legitimate wrongs done by the court. Which wrongs bug you more is a question of what your values are.

      1. This.

        And to put it in John-ian terms, the root cause of the problem is Progressive jurisprudence, which invents fake “rights” but refuses to enforce real ones (like economic liberty rights).

        So to consider this dispute apart from its origins is ridiculous. Both sides are trying to save the country from Progressive jurisprudence. This should provide an incentive for the sides to work together.

      2. My big beef is with the Court supporting things that are unconstitutional on their faces–because they don’t want to upset a hundred years of bad precedent.

        For the hundredth time, there is nothing any of us do–or don’t do–that doesn’t harm someone else in some way, but that fact does not give the federal government the right to make us do or not do anything they want–by way of the Commerce Clause.

        The precedent on the Court’s interpretation is just plain stupid, and fixing that stupidity will necessarily require upsetting precedent–if you care about liberty and justice.

        There are a lot of rulings that need to be overturned, and every time they get a chance to overturn one and don’t, they’re just adding to the problem of upsetting even more precedent.

        1. They are afraid of being seen as too political as if that ship hadn’t already sailed.

          Your complaint while valid is really just a symptom of the larger issue, all of the justices sans really Thomas engage in results oriented jurisprudence and adopt whatever judicial philosophy they need to justify getting the results they want. The Kennedy gay marriage decision is a classic example of this and so is the infamous Roberts’ opinions on Obamacare. And as bad as those decisions are, the dissenting opinions by the liberal justices are even worse.

      3. John, what bugs me is Holmes’ Lochner dissent. The proggies have always heralded it; in reality, it is gibberish.

        To wit, “a constitution is not intended to embody a particular economic theory.”

        Roger Pilon, whom Root references, utterly destroyed Holmes’ nonsense in a law review article some years ago. Essentially, he argued that private property and respect for private property and the inviolability of private property are reflected in the First, Second, Third, Fourth, Fifth, Ninth, Thirteenth and fourteenth amendments. Implicit in that proposition is the reality that the acquisition and disposal of private property must also be protected and respected and that cannot happen under communism, socialism or any of its variants.

        1. I agree with you. And that is why I think the two sides are talking past each other. I don’t think you need to resort to substantive due process to justify protecting economic rights. Protection of economic rights is written in the document in a way that protection of shit like “privacy” and “marriage” is not.

          Cruz is not wrong in wanting to kill off substantive due process. He is, however, wrong in thinking that doing that would mean you couldn’t also protect economic rights. Both sides in my opinion wrongly connect the protection of economic rights with substantive due process.

          1. The problem with putting a qualifier, like “substantive” in front of “due process” is it, really, means “not due process”, because the substance of what makes it into due process is not defined, otherwise it would be part of plain old due process.
            “Substantive due process” is, basically, the SCOTUS saying “we will decide what due process is, even if there is no defined process to which we are being held.”

        2. And the more you think about Holmes’ claim that “the Constitution didn’t embody a particular economic theory”, the more appalling it becomes. The statement assumes the answer to the entire question, which is does the Constitution’s protection of rights embody a set of economic rights. If the answer is yes, then the Constitution most certainly did embody a certain economic theory.

  18. When the Supreme Court is rolling the way we like, “restraint” is a bad thing.

  19. “It’s true that the libertarian legal movement has joined forces with liberals in certain areas of the law, such as the fight over gay rights.”

    Correction: SOME of the libertarian movement. Some of us still believe that the government shouldn’t be in the marriage business. Period.

  20. This is my problem with Reason nuts. “I suppose you could call the outcome of that case “progressive,” though it hardly seems to count as “statist.”. Let me tell you HOW this is Progressive and STATIST. The STATE redefined the word of marriage in an act of totalitarian judicial activism against the moral conscience or millions and against the Constitutions of most of the States and the democratic votes of a majority of Americans. You supported the STATE in it’s ordination of marriage against the traditions of a millennium. You cheered as the State seized control of the institution and now the State uses it’s new found and broad power to coerce and force people against their religious and moral conscience. The State pushes the progressive view in the public school system. The people who dissent are professionally and publically lynched. NOT STATIST??? You are obtuse and ignorant in the worst kind of way. Tell the truth for once… your progressive views TRUMP the religious conscience of others, because you don’t value the first amendment or the tenth amendment. You don’t believe in federalism when it doesn’t benefit you.

    1. You miss the point:

      Gay marriage: good

      Statism: not good

      Therefore: Gay marriage decision is not statism.

      QED

    2. “Wah! I want the government to enforce MY version of marriage because old = good! NOT FAIR.”

      Conservatives get ever whinier as they get more disingenuous. You lose; get over it.

      1. we know, you hated government marriage until the gays and the progs told you to love it.

  21. SCOTUS should enforce the words of the Constitution, recognizing the limited scope of federal power, the guarantee that no citizen shall be deprived of life, liberty, or property without due process of law, the guarantee of equal protection under the law, and the instruction that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.

    I don’t know or care whether that’s restraint or activism. There’s disagreement over what “judicial activism” and “judicial restraint” even mean. Usually, in these debates, people aren’t even using an agreed-upon vocabulary.

  22. Ed Whelan was an enthusiastic proponent of John Roberts’ confirmation. That he has the nerve to accused anybody of being a useful idiot for statists is to LOL.

  23. Isn’t this debate somewhat artificial in that there will never been any activist “economic liberty” judges ever appointed to the Federal Judiciary?

  24. SCOTUS must be revised but not because of constitutional interpretation or any other doctrine. SCOTUS must be revised in order to return the United States to some resemblance or honorability. Gay Marriage decision was honorable but was not reached honorably. The ADA decision was honorable but was not reached honorably. The Petition for Certiorari of Arkansas 12-week limitation on aborting gestation when heartbeats are detected will perhaps extinguish the abortion controversy and include an honorable rational for each recent mistake as well as the dishonorable recent mistake of the Ninth Circuit re: Ms Garcia.

    SCOTUS, as a group, does not resemble the United States’ population. Life-long terms are wholly inappropriate with more lawyers in these United States than can be honorably employed. The original 13 English colonies became independent sovereign States before “federation”. There few noted United States’ lawyers with educations in laws of the United States; as in ZERO! This rarity is the ignored rational for life-long judicial terms. Judicial independence is easily preserved when judges MUST all retire after ten years. If United States’ citizens wanted a SCOTUS with judges aged 77-90, this ridiculous type composition of United States oligarchy could still occur. I bet it would not. United States has too few people with enough intelligence to understand the Last Amendment ever needed but there are enough who could understand this fact.

  25. Three generations of useful idiots are enough.

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