Ethics & Public Policy Center

Replacing Justice Souter

Published in Washington Post on May 3, 2009



President Obama has promised — or, rather, threatened — to select Supreme Court justices who will indulge their own subjective passions, their “deepest values” and “the depth and breadth of [their] empathy” in deciding what the Constitution means. He’s even said that the “critical ingredient” in judging the “truly difficult” cases “is supplied by what is in the judge’s heart.” That’s a recipe for the same sort of lawless judicial activism that has poisoned American politics for decades, most notably with Roe v. Wade‘s removal of abortion policy from the ordinary processes of representative government.

Obama should abandon his threat and embrace a more venerable brand of liberal judging. When conservative justices in the early decades of the 20th century invoked “substantive due process” to strike down progressive economic and social legislation, liberals vigorously — and, ultimately, successfully — advocated principles of judicial restraint.

Judicial restraint respects the Constitution’s separation of powers and recognizes that the Constitution creates a system of representative government that leaves most matters to democratic processes for decision making. Judicial invalidation of democratic enactments is warranted only when those enactments clearly violate the Constitution.

Today, the liberal version of judicial restraint would construe Congress’s legislative powers broadly and be skeptical of the various constitutional challenges that will be levied against Obama’s domestic agenda.

Alas, the once-dominant species of liberal proponents of judicial restraint has relatively few surviving members. Obama should find them — why not José Cabranes, the excellent judge whom President Bill Clinton appointed to the 2nd Circuit? — and help revive the species. Doing so would make great strides toward ending the judicial wars and restoring proper respect for Americans’ democratic powers.

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