Posner's Gauntlet

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.