The most important legal development in the last decade is the
Republican Party’s wholesale abandonment of judicial restraint. Less
than a decade ago, President George W. Bush campaigned against “activist
judges” who seize the power to “issue new laws from the bench.” And
Bush’s Supreme Court appointees peppered their confirmation hearings
with the rhetoric of restraint. Chief Justice John Roberts said that he
would “prefer to be known as a modest judge,” and he emphasized that
when judges make policy judgments, “they lose their legitimacy.” Justice
Samuel Alito expressed similar sentiments, warning that judicial
decisions should be narrow and focused on the facts of a particular
case:
“[I]f judges begin to go further and announce and decide questions that aren’t before them or issue opinions or statements about questions that aren’t before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong. . . . [I]t makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.Whatever Justices Roberts and Alito believed during their confirmation hearings, however, it rapidly became clear that they have little interest in restraining themselves. In their first full term together, both justices joined an opinion overruling a very recent abortion precedent because “some women come to regret” their own choices when they are allowed to make them.They claimed that a plan to desegregate public schools violates Brown v. Board of Education. And they infamously cut back on women’s right to equal pay for equal work in the Ledbetter decision that was later overturned by an Act of Congress.
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