Commentary Magazine


Think Again

We are on the verge of another great debate over judicial philosophy and the role of the courts. Conservatives generally adore these discussions that accompany a Supreme Court nomination because polling shows the public agrees with their view that judges should determine the meaning of the Constitution rather than make up law or enact policy.

But I wonder if liberals might take a second look at their own judicial philosophy. Now that they hold large majorities in both houses of Congress and have the White House (which gives them the power to publish and enact federal regulations) why isn’t judicial restraint a more appealing philosophy to them? After all, they shouldn’t want unelected judges making policy decisions which would overturn the handiwork of Nancy Pelosi. They should want the Court to extend great deference to the regulations and administrative decisions from the Obama EPA and dozens of other federal agencies, boards, and departments.

Democrats might want to embrace their inner judicial humility, acknowledge that judges are ill-equipped to make policy decisions, and look for judges who are not eager to tell Congress how to do its job. After all, it is what most Americans believe and it is the basis of self-government.

Well, that might be too much to expect. But it should give them pause to consider whether empowering empathetic judges is really the way to preserve public support, not to mention their liberal domestic agenda.

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