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John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.
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Marty, you sure read a lot into my post, which was meant as a critique of Sands' view that American lawyers should be prosecuted in foreign courts if they give legal advice that results in international law violations, not as a defense of the torture memo. I certainly am not going to defend the memo. With the benefit of hindsight, it is clear that this memo and the other legal memos issued by the Bush administration were a failed effort in living constitutionalism. The Bush lawyers apparently believed that the political establishment would accept their expansive theories of presidential power-that they could take further steps forward on behalf of the executive branch, which has been accumulating power for hundreds of years, as a result of changing attitudes caused by the 9/11 attacks. It is clear that they were wrong, and now they are paying the price. It is possible that the failure was due to the legal-craft defects in the memos. More likely, the lawyers simply misjudged the response of Congress, the public, and the media. After all, all efforts at constitutional change outside the formal amendment process necessarily involve aggressive readings of the law, which lawyers recognize as legal-craft failures but which may nonetheless succeed. It is an important example for Jack's theory, which needs an account as to why some efforts to entrench the preferences of temporally extended majorities succeed and others fail.
It is equally clear, I think, that the Kosovo decision did exactly what the torture decision failed to do: it effected a change in the law. Whereas before the Kosovo intervention it was clear that a non-defensive invasion of a foreign country without Security Council authorization violated international law, after the intervention all kinds of people-international lawyers, diplomats, politicians-claimed that there was an implicit exception for humanitarian intervention. The intervention had other implications for international law that are being felt to this day. Whether this quite obviously illegal act had a good or bad effect on international law is a political and moral question. This was exactly my point: is this the sort of question that should be answered by foreign courts, as Sands would have it? If you think that the effect on international law of that decision has has been a good one, then you cannot agree with Sands's view, unless you believe that it is right for trial judges in European countries to set the rules for nations in the course of adjudicating criminal trials of American and other foreign lawyers.
As for your claim that my view is cynical, I was actually more afraid that someone like Jack would say that it is trite. Jack, after all, accused Dahlia of literocrisy when she said that she was appalled by the influence of politics on supreme court decisionmaking. I'm "shocked, shocked," says Jack, to see the political views of supreme court justices influencing their decisions, and he won't be a bit surprised, he continues, if the court recognizes gun rights on the basis of an incorrect reading of the Constitution. Your reaction to me was, in substance if not in tone, exactly the same as Dahlia's reaction to Jack. How can you be so "insouciant," she said (actually she didn't use that word), about the justices inventing gun rights? His response is that he does care but he is interested in a different question, the question of how constitutional change occurs. Jack's vision of constitutional change is court-centered; in my own work I have focused on how constitutional change occurs through struggles among the three branches as well, and so a further question is how the executive branch effects constitutional change. You see, and how many times am I going to quote this line from Jack?, the purpose of judicial review is "to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities." This prescription assumes, correctly in my view, that legal-craft error is not just the result of incompetence or bad faith or evil; it has to happen if we are to have a living constitution. And it will be done by all three branches, not just the courts, in the course of advancing substantive views about their constitutional roles. So the whole question boils down to the issue of who gets to determine whether a craft-error was a mere error or constitutional change. Jack would say, "social movements." I would say, "politics." Sands would say, "judges." But why should judges make such essential political-constitutional decisions? They are not the arbiters of the living constitution, as Jack has so painstakingly demonstrated.
I am sorry that my teasing of Philippe Sands (who is made of sterner stuff than you might think) led you to believe that I think that there is nothing of moral significance in this debate, or that your (or his) indignation was feigned. If you still don't understand the source of our miscommunication, read again Dahlia's post to Jack, and his response to her. I don't think anything could be clearer, and I feel that we have already tested our readers' patience.
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6. Use the techniques of common law decision making to extend, limit, and revise doctrines and precedents to help keep them faithful to text and principle as you apply doctrines to new fact patterns and changing circumstances. Most of your work as a judge (and especially a lower court judge) will involve doctrinal development and application. Remember that doctrine and precedent should serve constitutional text and principle, and not the other way around.
Again, too much originalism for my taste. I would add: Be prepared to back down when your decisions produce a public backlash. Duck politically sensitive issues if you can. In emergencies, defer to the president. Decide cases narrowly.
7. When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.
Jack, did you put this in so that you would have an even 10 rather than 9 principles? What's wrong with 9 principles? Or even 8 or 7? (Is the model the Ten Commandments or a Letterman Top Ten List?)
8. Don't assume that judges are the only people who know what the Constitution means.
Yes! Most constitutional development occurs outside of the judiciary. The modern presidency, so different from what the founders envisioned, to the extent they even agreed on what they envisioned, is the result of compromises between Congresses, presidents, parties, etc.; the justices have played a relatively minor role. I would expand on this principle, and tell judges that other people might very well have a better idea of what the Constitution is or should be, and you need to be prepared to persuade them by argument that their views are wrong, at least if you want to get anywhere with your own. And don't start messing with extra-judicial constitutional norms that have been evolving on their own unless something is seriously amiss.
9. Pay attention to the tradition of conflicting interpretations of the Constitution that has been handed down to you as a potential source of enlightenment.
See my comment on #7.
10. Do you best to live up to your judicial oath of office "to administer justice without respect to persons, [to] do equal right to the poor and to the rich, and [to] faithfully and impartially discharge and perform all the duties incumbent upon [you]."
See my comment on #7.
11. Decide cases in a manner that represents and protects (in as legally principled a way as possible) the constitutional values of temporally extended majorities.
Oops! You only had 10 principles, didn't you? I took #11 from here. I know, I know, I've mixed up theories again. Still, the part in parentheses might not be bad advice, with due consideration for the underlined words. You might add: And don't admit that this is what you are doing!
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Jack asks me what I think of his top ten pieces of advice for judges. Well, let's take a look.
1. Be faithful to the original meaning of the text of the Constitution and the principles that underlie it.
We're not off to a good start. Living constitutionalism requires that our system of judicial review be (or be perceived as) legitimate, as Jack has persuasively argued. Legitimacy means that the people, or at least the people who exercise political power of any sort, believe that judicial review serves their interests, rightly understood. I find it hard to believe that faithfulness to the original meaning of the text of the Constitution will produce legitimacy. (In public debate, it is hardly an exaggeration to say that people claim as the original meaning whatever they think serves their interests today.) After all, people don't care about the original meaning of the Constitution; they don't even know what it is. What they care about is good government delivering needed public services. Faithfulness to the original meaning is consistent with good government only if either (1) the founders somehow anticipated public needs in the world ca. 2008 and managed to design government institutions that would be as good for 2008 as they were in 1789; or (2) they produced the optimal amendment process, allowing the people to change the government whenever changing circumstances demanded new government structures (almost always!). If there is any consensus in constitutional law, it is that the amendment process is too cumbersome and slow. That is why the justices have had to update the Constitution through aggressive interpretation. Fortunately, the founders, in their wisdom, used language of almost infinite malleability, so that (the 34 year old president and the three-house Congress aside) we can almost always claim that whatever we want is consistent with the Constitution, or at least the principles (infinitely malleable times two) that underlie it.
2. Make legal arguments using the modalities of text, history, structure, prudence, precedent and national ethos.
The major alternative to modern-style originalism, which requires justices to overturn precedents in order to return us to the world of 1789, is to respect those precedents, as much as possible, and exercise judicial restraint (underenforcement of constitutional norms), so that the political branches can update the Constitution without judicial interference. Constitutional text will be a starting point when no precedents exist, but that is increasingly rare, and judicial restraint will limit the harm done in those circumstances.
3. You are required to decide consistent with the text's original meaning but you are not bound by the original expected application of the text, although that may be useful evidence of original meaning or of the principles underlying the text.
One of Jack's contributions to the debate, and I hesitate to criticize it before sitting down and reading his work on this topic (it's on my desk, I swear!). For now, I will say that Jack's watered-down originalism, as I understand it, partly but does not fully meet my objections to originalism, as described in #1. Jack's is a Goldilocks view that legitimacy requires avoidance of two extremes: slavish devotion to the document ("original expected application") and indifference to it. If I am right that people today don't care much about the original document (whose major purposes, having to do with slavery and agriculture and so forth, have little bearing on the optimal structure of government today), then there is no need to make obeisance by looking for justifications in its "principles."
4. Apply existing precedents as long as they reasonably implement text and principle, even if they are imperfect articulations of text and principle and even if you would have done things differently if you were writing on a clean slate.
See my comments on #1 and #2.
5. Employ humility and charity in assessing constitutional interpretations of the past. Even if you think that previous jurists did not correctly implement text and principle, try to understand how their interpretations, read in their best light, might be faithful to the Constitution's text and principles.
Okay, okay.
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Courage, Orin! Your question was a good one and Jack did not answer it. He draws an artificial distinction between questions of constitutional legitimacy ("Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time.") and questions about how justices should decide cases. He insists the questions are separate, but they are not--at least, not if the justices care about the legitimacy of the constitutional system, as they most certainly do. Here's Justice O'Connor (Planned Parenthood v. Casey), who even uses the word "legitimacy" over and over again.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is [505 U.S. 833, 866] obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
... However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
... That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its [505 U.S. 833, 867] decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
... So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. ...
... It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
Jack himself has subterranean doubts about this distinction, which keep bubbling to the surface. "Giving advice to judges is not really the goal of the theory." "It is probably best not understood as a theory advising judges...." "It may not be advice directed to individual judges, or, if it is, it must be far more than that." It might not be intended as advice, but Jack's theory certainly has implications for judicial decisionmaking--not necessarily that justices should do the politics of the president that appoints them, but that they should do whatever is necessary to maintain the legitimacy of the system. Why he denies, or may deny this, I don't understand, either. And if the implications are odd or don't seem right, that will cast doubt on the theory, even though the theory itself is intended to answer an entirely different question, and even if Jack himself is not interested in the judicial advice question.
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Jack defines living constitutionalism as follows (critique to follow):
Under this model of living constitutionalism, successive generations may not reject the Constitution's text and principles, but they may decide how best to honor, implement, and apply them through constitutional constructions and doctrinal implementations. ...
This model produces a system of judicial interpretation that is responsive to democratic politics in the long run but not directly controlled by it in the short run. It preserves constitutional law's relative autonomy from politics in the short run while making it responsive to constitutional politics in the long run.
It also involves a system of judicial review but not a system of judicial supremacy. This distinction is crucial: Courts act as a stabilizing force, and hold officials (and especially executive officials) accountable to law, but they never have the last word. The purpose of judicial review in this model is to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities, and to prevent quick and drastic changes in those constitutional values unless there has been extended and sustained support for change that is reflected in long term changes in constitutional culture.
Moreover, in this model judges do not have to do anything special or out of the ordinary to participate in the process of living constitutionalism. They don't have to be politicians or moral theorists or divinities like Dworkin's Hercules or philosopher kings. They don't have to be smarter, or wiser, or more moral or more farsighted than anyone else. All they have to do, once they get appointed, is to try to decide the cases according to law, in the best way they can. If they just go about doing their jobs, they will, in spite of themselves, participate in the gradual translation of changing constitutional politics into constitutional law. Meanwhile the job of people like me, and Dahlia, and Eric, and everyone else, is to criticize how they interpret the law and to try to persuade other people, and them, that our interpretations of the Constitution are the best ones and that they should agree with us.
I emphasized three features of this theory in the passage. (1) The purpose of judicial review is to protect the values of temporally extended majorities. (2) All judges do is decide cases according to the law. (3) Observers can criticize them for failing to decide cases according to the law.
If I understand Jack correctly, the first feature is the structural aspect of living constitutionalism, while the second and third features are something like normal judging and criticism that occurs within that structure. The lynchpin of the system is that "political" appointment to the judiciary of people with (unavoidable human, partisan) biases that are appealing to the elected officials who select them, plus lifetime appointment, result in the protection of the values of the temporally extended majorities; but the judges themselves just decide cases in what seem to them in the appropriate manner, and the rest of us criticize those judges for violating legal craft values when they do. This system as a whole provides stability while also "changing with the times" in a manner that approximates public values: hence it maintains its legitimacy for the public, which wants just those things.
Jack warms my heart by comparing constitutionalism to markets:
Suppose for example, that we want to design an efficient market. We ask how its design and incentives produce certain types of results, and if it does not, we redesign the market and shape the incentives. We do not spend very much time giving advice to people in the market about how to behave so as to produce efficiency; rather we assume that efficiency arises from the sum of their interactions, and not from each of them following our advice about how to behave. In fact, it may be a mistake to focus primarily on advising individual people about how to behave in the market, although educating people about costs and benefits, might be a good idea; so too much be educational campaigns to shape people's values and preferences. Another example of a focus on systems is our Constitution's separation of powers. It tries to preserve republican government by balancing contrasting interests, under the assumption, as Madison put it, that enlightened statesmen (the sort who would respond to good advice) will not always be at the helm.
I take Jack to be saying that we should distinguish between constitutional design (designing an efficient market) and individual case outcomes (advising someone to charge a certain price). We should recognize that a market may be efficiently designed even if some individuals make bad pricing or purchasing decisions; we should recognize that a constitution may be legitimate even if some judges make bad decisions.
Alas, I don't think the analogy works. If a business sets prices too high, it loses its customers and folds; if it sets prices too low, it loses its shareholders and folds. When it vanishes, another firm takes its place. The business's bad decision doesn't have any effect on the overall structure of the market-the system of property and contract rights that are enforced by courts-or even the market's output.
When a Supreme Court justice makes a decision, however, that justice does affect the system. Jack wants courts to protect the values of temporally extended majorities: that's part of the "structure." But justices can change this structure if they want to. They can, for example, make it harder or easier for Congress to pass laws (for example, by adopting narrow constructions of statutes, inventing new rights, etc.), in this way making it harder or easier for the temporally extended majority to have its way.
Or, to go way back to the beginning of the discussion, when Dahlia was criticizing the Supreme Court for (presumably) making a bad decision in Heller, and Jack wrote a response describing how living constitutionalism works, I (and Dahlia) thought that Jack meant that Dahlia shouldn't bother criticizing the Supreme Court for allowing political biases to influence decisionmaking. If she doesn't like the way judges decide cases in a manner that reflects their political biases, she should join a social movement and effect political change through politics. Now it is clear that Jack didn't mean that Dahlia should stop criticizing the justices. Jack says that Dahlia should go ahead and criticize the opinions; perhaps she'll persuade the justices to change their minds. But Dahlia should recognize that the system as a whole remains legitimate, and that she'll get her day when her political views prevail at the polls.
I think, however, that Jack's theory has more radical implications for Dahlia's job than he says.
To see why, suppose that our system is legitimate precisely because, as Jack says, it allows temporally extended majorities to entrench their political preferences beyond their time in power. And let's say that such a system is not just legitimate; it's actually best or as good as one can hope for (perhaps that's why its legitimate).
Now consider Dahlia's worry that the (future) Heller decision will entrench a politically conservative outcome, one that we won't be able to eliminate until many decades of liberal hegemony occur-long enough to build up a liberal majority in the Supreme Court, while maintaining liberal domination in the political branches.
And suppose that the current conservative majority reads Dahlia's critique and says, by golly, she's right. Let's not find a gun right. Let's instead exercise judicial modesty and allow contemporary political majorities to craft gun control policy on their own.
If Jack is right, then these judges are doing poorly-not at the case-outcome level, but at the systemic, living constitution level-by following Dahlia's advice. After all, if they forsake their opportunity to entrench current conservative opinion, then it will be much easier, than it would otherwise be, for the next generation of liberals to implement their liberal agenda. The justices will be thwarting the political agenda of the currently entrenched majority, and in this way undermining the system of living constitutionalism that Jack celebrates-the system in which parties take turns in power and stability is maintained because parties can partially entrench their policies through the judiciary. They will be failing to serve their political role of "stabilizing force," which is so necessary for maintaining constitutional legitimacy. It would be as though Republican elected officials all started voting Democratic: they've had a change of heart and they don't give a damn for the opinions of the people who elected them. Democrats would be happy in the short run but everyone would feel uneasy about such an outcome. Dahlia shouldn't want to give justices bad advice; she shouldn't want them to act like my imaginary elected officials; she should want the justices to maintain the legitimacy of the constitutional system by serving as a "stabilizing force."
Dahlia (Dahlia!, are you paying attention?), who may, like the rest of us, have partisan views, but also is public spirited, and surely wouldn't want to undermine the legitimacy of our living constitution, should give the justices good rather than bad advice. She should praise conservative justices for entrenching conservative political opinion; praise liberal justices for entrenching liberal political opinion (should we live long enough to witness this happy eventuality); and criticize mavericks who cross party lines. Dahlia, you have been doing everything backwards!
Such a conclusion is not as crazy as it might seem (though it is crazy). In fact, an academic paper proves that, if you accept certain (apparently reasonable) assumptions, the best supreme court is one in which justices engage in partisan activism (to hit you between the eyes with this point, the authors call their paper a defense of "unprincipled judicial activism"). (See here; and for some criticisms by me, here.) The ingenious point of the authors, James Rogers and Georg Vanberg, is that activist supreme court justices, in effect, merely elevate the level of supermajoritarianism in our law-making system. A high level of supermajoritarianism prevents mere majorities from passing laws that transfer resources from minorities to majorities, while allowing laws to go through that benefit everyone (an old Buchanan & Tullock argument). The authors don't acknowledge the implications of their paper for public-spirited journalists and critics, but they are exactly as I state above. If the legitimacy of our system depends on justices acting on their political biases because they were appointed just because they have those biases, then we should encourage justices to act on their biases rather than say "gotcha!" whenever they do. It would be a terrible thing if they rose above partisanship, a real mistake for them to assume the mantle of impartiality. Any justice who got religion would need to be subjected to immediate deprogramming.
Does Jack believe this? He does hedge his bets by saying that even as justices work to protect the values of temporally extended majorities, they should do so in "as legally principled way as possible," but the very fact of hedging in this way indicates that he is aware that the implications of his theory for judicial decisionmaking are radical rather than modest.
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Jack, to answer your questions, as pithily as possible, I understand judicial restraint as underenforcement of constitutional norms, not the position that there are few or no constitutional rights or only those constitutional rights that reflect my political preferences. And you are right to point out the difficulty of making comparisons to foreign constitutions; a conversation for another time, perhaps. But enough about me! I'd rather hear about your views than talk about mine, which are warmed-over leftovers of the work of the constitutional law professors I cited earlier.* You seem to have something new to say.
In earlier posts, you said, or seemed to say, that if Dahlia doesn't like the way that Supreme Court justices "invent rights," then she should start or join a social movement ("If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time."). This puzzled Dahlia, who has been operating under the assumption that part of her job was to spot errors and inconsistencies in the court's decisions: "If you really mean it that ‘social movements' will carry the day whether or not the court intercedes, it does raise the question of why we bother with courts in the first place. ... So while I admire the Zen-like commitment to letting the political systems work it out over time, I am not quite sold."
In our latest exchange, I tried to make a case for judicial restraint. The argument was a normative argument (judicial restraint is good) but it also depended on an empirical claim (good for both political sides, so they can, in principle, agree to it). Your response in your second-to-last post (yes I did fall down the rabbit hole into Balkinizationland) was:
Now nobody who can get appointed to the federal courts believes that courts should generally get out of the business of judicial review; almost everybody mainstream enough to get a job in the federal judiciary thinks that there plenty of things that courts should be able to declare unconstitutional. ...
If we start to see more judicial restraint in the federal courts, I agree with Eric (or at least one position of Eric's) this will not be because judges have bought into the latest academic theories about good judging. Rather, it will be because this is consonant with changing substantive agendas, as happened with liberals for a time during and immediately following the New Deal. (Conservatives, meanwhile, took the opposite view, at least where economic regulation and federalism were concerned.) ...
Given these supply side effects, the movement by conservative jurists away from judicial restraint is overdetermined. Conservatives gaining control over the federal courts plus the concerted strategies of conservative public interest lawyers were likely to produce increased judicial activism in a conservative direction. Conservatism today supports judicial restraint only fitfully; the rhetoric of the 1960s and 1970s hasn't always caught up with the reality.
And a great deal more in this vein, very much in the spirit of your response to Dahlia. If it is true that judges will (for example) exercise judicial restraint if and only if (?) changing substantive agendas favor that posture, then there isn't much point in discussing whether judicial restraint (however defined) is good or bad, is it? Or in encouraging judges to exercise it? Or in encouraging elected officials to seek out judges with this inclination? Nor does there seem to be much point (Dahlia's concern) in criticizing judges for deciding cases inconsistently with their professed judicial philosophies, other than, perhaps, to point out to them that they have deviated from party orthodoxy. We can do no more than wait for substantive agendas to change.
This is certainly one view. The decline of judicial restraint was not only determined; it was overdetermined. And if it should reappear, that would be determined or overdetermined as well. Am I to be faulted for thinking that you were caught in the snarls of the determinacy paradox? I am glad that you reject this view.
But then, what is your view? I am trying to reconcile the following half-understood fragments. 1) A suggestion that Supreme Court justices do politics; does that mean narrow partisanship is unavoidable, or is it possible that justices could be made to see that some judicial philosophies are better, for the public and for themselves and their parties, than others? 2) Is the version of originalism that you have been peddling such a philosophy? Or is it just of theoretical interest (the "right" way to interpret the Constitution even if no judge ever adopts it)? Or perhaps a strategy for liberal or progressive judges who would like to hoist conservatives by their own petards? 3) How do these ideas fit with your political science style discussions, which emphasize the importance of social movements, politics, appointments, and the like? Easy on the humor please: we are literal-minded here in flyover territory.
*Jack's Balkinization co-blogger Mark Graber notes correctly that in my earlier post I was referring only to law professors who have advanced the views I am defending here. For the work of political scientists in a similar vein, see his post here.