Abstract
Two Supreme Court cases from June 2013 Shelby County v. Holder and Windsor v. United States aptly illustrate what is wrong with the contemporary Court. Both were decided by 5–4 votes, and both overturned important pieces of federal legislation, the Voting Rights Act and the Defense of Marriage Act, respectively. In both cases, impassioned and logically coherent dissents argued for judicial restraint, by Justice Ruth Bader Ginsburg in the first case and by Justice Antonin Scalia in the second. But both justices blatantly ignored the axioms from their dissents in the other case. What is badly needed today is a constitutional theory that will point toward consistent and principled judicial restraint.
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Notes
Gray McDowell, Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge: Louisiana State University Press, 1988), 8.
John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984), 11.
Richard Pacelle, The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (Boulder, CO: Westview, 1991).
Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 228. Includes quotation from Leahy.
Stephen Macedo, The New Right versus the Constitution (Washington: Cato Institute, 1986).
See Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002).
Richard Weaver, Ideas Have Consequences (Chicago: University of Chicago Press, 1948). One need not, clearly, endorse Weaver’s substantive position (that the Western tradition has been undermined by relativism) to agree with the conceptual point about the importance of ideas.
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© 2015 Jerold Waltman
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Waltman, J. (2015). Where We Are Now. In: Principled Judicial Restraint: A Case Against Activism. Palgrave Pivot, New York. https://doi.org/10.1057/9781137486967_1
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DOI: https://doi.org/10.1057/9781137486967_1
Publisher Name: Palgrave Pivot, New York
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