Tag: Judicial Restraint

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Republican Self-Government and Judicial Restraint

George Thomas

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 … Continue reading Republican Self-Government and Judicial Restraint

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Restraining Judicial Restraint

Greg Weiner

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

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Court Reform and Judicial Self-Restraint

George Thomas

Like Jeff Tulis, I admire Adam White’s work. I appreciate both his skepticism of court-packing and his case for self-restraint. And I certainly appreciate Greg Weiner’s point that political actors should not push their constitutional power to the limit. That institutional restraint can be a virtue. Though, if anything, Congress often seems too restrained.  But two points are in order.  First, White is right to worry about whether court-packing and terms limits might cause the Court to be more politicized. In the current environment, he points to some important problems with 18 year term limits for the justices oriented around … Continue reading Court Reform and Judicial Self-Restraint