Supreme Court

A Guide to Supreme Court Vacancies for GOP Candidates

"Reject clichéd calls for 'judicial restraint'"

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Credit: C-SPAN

In the latest issue of The Weekly Standard, libertarian law professors Randy Barnett and Josh Blackman have a piece titled "The Next Justices: A guide for GOP candidates on how to fill Court vacancies." In brief, Barnett and Blackman advise the current crop of Republican presidential hopefuls on how to avoid repeating the judicial disappointments of the past by nominating genuine "constitutional conservatives" to the bench. It's a very interesting article and well worth your attention. Here's a snippet:

Reject clichéd calls for 'judicial restraint'

…In National Federation of Independent Business v. Sebelius, Chief Justice Roberts found that Obamacare's individual mandate exceeded Congress's powers under the commerce clause. But he didn't stop there. After finding the law Congress wrote was unconstitutional, the chief justice then employed a "saving construction" to rewrite the mandate so he could uphold it as a tax. This he did in the name of judicial restraint and deference to Congress….

"Judicial restraint" and "deference to the legislature" are easily manipulable concepts that distract attention from what really should matter to any constitutionally conservative voter or president: Who has the fortitude to follow the Constitution wherever it may lead and let the chips fall where they may? Any judicial nominee can claim he or she will be "restrained" or "deferential" but what exactly do they think "restrains" them? The popularly elected Congress, or the popularly enacted Constitution? Invocations of "restraint" and "deference" are designed to avoid this crucial issue. The same goes for deference to the executive and its administrative agencies.

Presidential candidates should reject the vapid labels of "restraint" and "legislating from the bench" and focus instead on what a prospective nominee's proven track record and paper trail (see above) say about his or her constitutional philosophy. The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about "strict constructionism" or "calling balls and strikes" during a confirmation hearing.

Read the whole thing here.

Related: John Roberts' Judicial Abdication