This Is What Judicial Restraint Looks Like

by Stuart Shapiro

Republican presidential candidates regularly complain about judges subverting democracy and say they would appoint ones who respected the will of the people.  But they don’t really mean it.  Judge J. Harvie Wilkinson III is an appeals court judge appointed by the President Reagan. He’s an extremist in the cause of judicial restraint and he has harsh words for conservative and liberal judges in his new book.  (From the review:)

More surprisingly, however, Wilkinson is just as critical of the jurisprudence of original understanding, embraced by Justices Antonin Scalia and Clarence Thomas. Calling originalism a form of “activism masquerading as restraint,” he says that the methodology “fails to constrain judicial choices” when the historical evidence is ambiguous, which it is in every hard case.

Wilkinson is withering about the Supreme Court’s recent decisions striking down gun control laws under the Second Amendment, which he compares to Roe v. Wade in their tendency to impose “judicial value judgments based on thin and shaky grounds.” He warns that a Supreme Court decision overturning health care reform would be just as activist as one legalizing gay marriage, although he approves of gay marriage, but not President Obama’s health care reform (“seems misconceived in many ways”), on policy grounds. And he has no patience for Bush v. Gore, which he calls “no friend of self-governance.”

There was a day when Wilkinson would have been a potential Supreme Court nominee but no Republican (even those that pretend to be in favor of judicial restraint but then praise Scalia and Thomas) would nominate him.  He’s worth reading even if you disagree with him.

By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.