The Public Interest

After Judicial Restraint

Terence J. Pell

Spring 1986

RONALD DWORKIN warns his readers that “the man now president may appoint enough Supreme Court Justices to set the character of that commanding institution for a decade.” That dawning realization has occasioned a spate of recent pronouncements by legal scholars. The point made by many seems to be that President Reagan’s appeal to judicial restraint is only a smokescreen for the right-wing agenda. A “Reagan Court,” these thinkers caution, would use the rhetoric of judicial restraint to further its own goals, such as prohibiting abortion, permitting school prayer, enforcing free-market rights, and so forth. These same scholars, of course, have long admired the “living” Constitution for its malleable power to support popular causes. Now we are told, however, that judicial restraint, long thought to be empty and formalistic, is really ideological and unprincipled, no matter how popular it may be.  As might be expected, then, these three books, all published within the last year, try to get constitutional law back onto neutral ground. They attempt to do so generally by transforming principles of constitutional law into issues of philosophic inquiry. For these authors, the criterion of a “good” judicial decision is its value as a statement of moral or social scientific truth. Once constitutional law is understood principally as an exercise in theory, then judicial restraint has no more claim to be the favorite mode of thought than does judicial activism: The legitimacy of each depends only on the ideological bunker from which it is tossed.

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