Real judicial restraint

I really like Yglesias’ take on yesterday’s ruling about the Affordable Care Act.  What matters is not so much, what was said, but who said it.  The judge who ruled that the ACA was quite obviously Constitutional not only was appointed by George W. Bush, but clerked for Scalia.

The best way to get at the significance of this is just that thus far we’ve seen moderate-and-progressive Democrat-appointed judges uphold the law and conservative Republican-appointed judges strike it down. Today’s decision from Judge Jeffrey Sutton breaks that pattern. Sutton is a Republican. And not some kind of weird holdover from Gerald Ford, not some mistake made by Ronald Reagan, not a compromise candidate offered by George H.W.Bush, but a former Scalia clerk who was nominated in 2001 by George W Bush. Senate Democrats made sure he didn’t come up for a vote at that time, but after the GOP win in the 2002 midterms he got his vote in 2003 and secured confirmation by a relative narrow 52-41 vote. Only two Democrats voted for him. He is, in other words, an orthodox conservative.

What I really liked about his decision is he actually showed what conservatives generally only give lip service to– genuine judicial restraint.  Summary quote via Ezra:

The opinion ends with a pointed reminder that the Supreme Court has traditionally “erred on the side of allowing the political branches to resolve the conflict,” and an assurance that “time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.”

Now the truth is, sometimes the people’s duly elected representatives are just flat-out wrong and something needs to be done about it (e.g., Civil Rights for both Blacks and women), but the general idea of judicial restraint is clearly a worthy one.  Unfortunately, the conservatives on the Supreme Court and rarely so restrained in their conservatism.

About Steve Greene
Professor of Political Science at NC State

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