Restraining Judicial Restraint
I agree with George that judicial restraint in and of itself does not provide a standard for judging. It may be worth separating two questions: the scope of judicial authority on the one hand and how it should be used on the other. Left wholly to itself, judicial restraint would be agnostic as to how cases should be decided. It would only care whether they should be decided. In other words, one could be an originalist or a living constitutionalist and still believe judges should be restrained. That is inextricable from a belief that constitutional questions are not the exclusive … Continue reading Restraining Judicial Restraint