I appreciate Greg’s linking judicial restraint to the primacy of republican self-government. And I especially appreciate his insistence that constitutional issues must be the concern of the political branches and the people, not simply the courts. Indeed, I’ve been perplexed in the last several years by originalists of one form or another who take comfort in the fact that President Trump appointed originalist jurists, while undermining the Constitution in so many other ways. “But Gorsuch” was a perverse embrace of judicial supremacy and a legalized Constitution. So Greg and I are in ready agreement that the Court, despite its claims to the contrary, is not the sole defender of the Constitution.
Yet turning to republican self-government still raises many questions about the judicial role. I think Greg is right that the Court would have a special duty to protect voting rights if we value the idea of republican self-government. But this highlights the fact that we should view the Court in relation to the other branches of government (including the states). The Court may need to be more engaged, more active if you prefer, if states are limiting voting rights. There are also a number of areas beyond voting rights where republican self-government limits what majorities can do: republican self-government depends on freedom of speech, religious liberty, the equal protection of the laws, and due process. Legislatures have often been particularly important in protecting these constitutional rights and values. The Civil Rights Act of 1875, the Civil Rights Act of 1964, and the Voting Rights of 1965 all stand out in this regard. I’m also in agreement with Greg that it would be much better if voting rights and electoral reform were secured by way of Congress and state legislatures rather than courts. But again, this depends on the actions of the executive and legislature not simply the courts.
Courts are justified, for instance, in protecting constitutional rights of freedom of speech against current state prohibitions on discussing Critical Race Theory at state universities. Doing so is essential to republican self-government. Perhaps Greg thinks these easily fit within James Bradley Thayer’s “clear mistake doctrine” on the grounds of original intent. I’m less sure. I think there’s no avoiding prudent judgment and constitutional construction when applying principles of free speech, as with so many other constitutional provisions.
If defenders of judicial supremacy often have an overly idealized view of courts, advocates of judicial restraint often have an overly idealized view of legislatures. Yet both of these institutions are important in the constitutional scheme, while neither is going to be perfect. How they interact with one another, whether they are restrained or engaged, will depend on what the other is doing.