Ilya Shapiro: The wrong kind of judicial restraint can be very bad


My boss Roger Pilon, the
founder of Cato’s Center for
Constitutional Studies, wrote a very prescient
Wall Street Journal op ed in 1991. Typically op ed’s have a shelf
life of, you know, a couple of days at best,
but here this is still talked about 25 years later But he encapsulated the response
of those who were both uneasy with the progressive
rewriting of the Constitution, but were also wary about this
idea of restraint, seeing it as also originating
in the Progressive Era. Quote: “conservatives and
classical liberals alike, indeed anyone who favors limited
government and a wide range of both personal and economic
liberties, should be concerned when the third branch
of government effectively withdraws from the scene. The dangers of popular tyranny
were well-known to the founders. They recognized the tendency of
factions, whether majoritarian or special interest, to use
government for their own ends, expanding the state in the process. It was for this reason that they
drafted a written constitution, and created an independent
judiciary to interpret it, a judiciary that was meant—
as Madison put it— to be the bulwark of our liberties.” How is the judiciary supposed
to be the bulwark of our liberties if it simply defers to the
other branches? So courts are charged with
holding elected officials’ feet to the constitutional
fire, and striking down laws that exceed the powers
that have been granted to these agents by the people. Chief Justice Roberts had to
rewrite two important parts of the Affordable Care Act to
avoid overturning the law. He tried to be the good
conservative by masking his efforts in a show of what he considered to be
restraint, and even modesty, by merely tweaking, rewriting
certain of Congress’s words, rather than striking
them down altogether. And I think he failed on his
own terms. As the four justices wrote
in a joint dissent: “The court regards its strange
statutory interpretation as judicial modesty.
It is not. It amounts instead to a vast
judicial overreaching. It creates a debilitated,
inoperable version of health care regulation that
Congress did not enact and the public does not expect.” And so the chief justice’s
immodest pacifism, combined with the activism
of the four liberal judges, created the Frankenstein
monster that was NFIB. And by letting Obamacare
survive in such a dubious manner, Roberts
undermined the trust that people have
that courts are impartial arbiters rather
than political actors.

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