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CJ Roberts is a pretty fair example of the sort of genuinely conservative judge--he is no progressive--favored by Republican presidents & conservatives before the marked rise of originalism. His split-the-baby ruling upholding Obamacare further weakened the appeal of "restraint." https://twitter.com/RandyEBarnett/status/1266722919633338369
One hallmark of this approach is to skip over the *substance* of a constitutional challenge and decide the case on the basis of “judicial role.” The “it’s not our job” stance. But, other than a few academics, no “restraint” justice is consistent about their restraint.
The Chief Justice is not so “restrained” in cases involving issues he cares more about. For most it’s
Restraint ON
Restraint OFF
With quotes from opinions emphasizing one role or the other as needed.
Restraint ON
Restraint OFF
With quotes from opinions emphasizing one role or the other as needed.
This is all explained at greater length in Our Republican Constitution: Securing the Liberty and Sovereignty of We the People https://www.amazon.com/dp/0062412280/ref=cm_sw_r_cp_api_i_ONP0EbQW6KSXP
The opposing stance is equally wrong: turning every policy disagreement into a constitutional issue. There truly is a mean between these extremes, and it starts with identifying and remaining faithful to the original meaning of the text of the Constitution.
This meaning includes the allocation of powers to other branches of the federal government and to the states. Judges are mainly charged with policing actions taken at the extremes--and usually pretexually. This is judicial "engagement," which is neither passivism nor activism.
But the problem with occupying the middle ground is it makes you vulnerable to attach from both extremes--attacks which vary depending on whose constitutional ox is being gored in a particular case.
But appeals to "judicial role" are usually the easiest way to voice an opinion without having to know much, if anything, about the constitutional issues or doctrines involved.
