Newspaper article International Herald Tribune

The Roberts Court

Newspaper article International Herald Tribune

The Roberts Court

Article excerpt

Will the U.S. Supreme Court's ruling in the health care case expunge judicial restraint from legal conservatism?

For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

This should not be surprising. Republican administrations, spurred by conservative interest groups since the 1980s, handpicked each of the conservative justices to reshape or strike down law that fails to reflect conservative political ideology.

When Antonin Scalia and Anthony Kennedy were selected by the Reagan administration, the goal was to choose judges who would be eager to undo liberal precedents. By the time John Roberts Jr. and Samuel Alito Jr. were selected in the second Bush administration, judicial "restraint" was no longer an aim among conservatives. They were chosen because their professional records showed that they would advance a political ideology that limits government and promotes market freedoms, with less regard to the general welfare.

There is an enormous distinction to be made between the approaches of the Roberts court and the Warren court, which conservatives have long railed against for being an activist court. For one thing, Republican-appointed justices who led that court, Chief Justice Earl Warren and Justice William Brennan Jr., were not selected to effect constitutional change as part of their own political agenda.

During an era of major social tumult, when the public's attitudes about racial equality, fairness in the workings of democracy and the dignity of the individual proved incompatible with old precedents, those centrists led the court to take new positions in carrying out democratic principles. Yet they were extremely mindful of the need to maintain the court's legitimacy, and sought unanimity in major rulings. …

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