Eric Posner, son of famed legal scholar Richard Posner and a formidable legal scholar in his own right, has recently posted an essay on Slate about judicial restraint. Claiming as essentially proven the contention that judge's decide cases based on policy preferences, Posner suggests that judges ought to exercise more restraint than activism in deciding cases. Mark Graber over at Balkinization has taken exception to Posner's lack of scholarly reading on the subject, claiming that his rendering of the "best academic literature" on the subject is heavily weighted toward legal scholars without taking into consideration the best historical and political science literature on the subject. Graber further suggests that he has found copious evidence of antebellum belief in a regime of judicial supremacy.
I will be interested in reading Graber's work when it is out. Graber always does interesting work--his last book, for example, argued that Dred Scott was decided correctly--but his claim sounds a bit overdone. This is Graber's style, of course, so we will have to see what comes out of it.
But it might be worth looking at Posner's call for judicial restraint. The Rehnquist and Roberts courts have been, so far, some of the most activist in our history. They are, in a large sense, heirs of the Fuller and Warren courts. Can we even return to judicial restraint? Posner makes the call, but does not suggest how in a regime in which we accept judicial supremacy we can enforce anything like judicial restraint. It is difficult to see how it might work.
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Posner’s essay is far more interesting than I thought. It is worthwhile to take into account how justices’ judgments are influenced by their original and the political views of the current regime. It is kind of pathetic but important to notice that justices and the Administration they live under are bound by each others’ political ideologies. After reading Posner’s essay, I am tempted to conclude that justices’ power is already restraint but not by the just sources. No doubt, justices apply their personal preferences in many cases when reaching final decisions. But how about the demands of the Administration that appoint them? They too contribute significantly in the controversies of justices’ decisions. At the end, neither party has the unlimited autonomy over judicial rulings. Perhaps, the variation between justices and Administration opionions is what needed to make the system work. However, the concern is, even then the system does not work as it should be. What will it take to balance judicial rulings for the most betterment of citizens? In this case, judicial restraint may be the answer as Posner suggest. Why not end this power struggle by exercising judicial restraint? Why not justify justices’ decisions by the constitutional theories?
How can we expect and implement judicial restraint? First of all, based on the Posner’s essay content, I say that there is no judicial supremacy. Of course, my notion will only apply if I am interpreting the meaning of judicial supremacy as many others do. Second, even if judicial supremacy exists, the consensus between liberals and conservatives is the key to its implementation. And leaving aside the craving for the judicial supremacy based upon the past political, institutional, and historical backgrounds will definitely work as the best method for judges to exercise judicial restraint.
Now, one may raise the following questions: can a consensus between the liberals and conservatives to favor judicial restraint be ever formed? If it is formed, how long will justices be able to exercise judicial restraint? One may also be right to conclude in this instance that such restraint will die down at very infant age by the interferences of the opposite forces or old practices. A sudden shift in the consensus between the liberals and conservatives also may put end to its enforcement.
At the end, the idea of judicial restraint may not work at all. However, there is no harm in trying out a noble intention like this. Is there?
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