Wednesday, July 11, 2012

Alicea on Justice Roberts & the Changing Conservative Movement

Check out Chief Justice Roberts and the Changing Conservative Legal Movement by Joel Alicea. Here is a taste:
    Judicial restraint used to mean that a judge should bend over backwards to avoid striking down a law, and this view was once widely held within the conservative legal community. But this idea has long since faded from the scene, and judicial restraint is less likely to be thought of by today’s legal conservatives as coinciding with judicial nonintervention. How many statutes the Court strikes down is simply beside the point for today’s legal conservative; the question is why the Court struck down the statutes that it did.

    And so we arrive at NFIB v. Sebelius. The chief justice’s opinion displays a clear embrace of the old judicial restraint. He announces that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Although the joint dissenters would likely agree with this principle, the key word is “reasonable.” The Justice Harlan conception of judicial restraint leads Roberts to stretch the language of the statute far beyond what the dissenters believe is reasonable—or indeed constitutional

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