Late last year, Reason magazine’s crack legal correspondent Damon Root chronicled the rise of the modern libertarian legal movement in his important new book, Overruled: The Long War for Control of the U.S. Supreme Court. In it, he focused especially on the struggle that some of us have been engaged in for more than four decades to recast the terms of the debate over the proper role of the courts from “judicial activism” and “judicial restraint” to “judicial engagement” and “judicial abdication.” That shift has been crucial because it refocused the debate from judicial behavior to where it should have been all along, namely, on the proper interpretation of the law before the court.
The struggle to bring about that shift, although much further along than when it began decades ago, is far from finished: Witness hearings just two days ago before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. Called by Subcommittee Chairman Ted Cruz in the wake of last month’s Supreme Court decisions in King v. Burwell, upholding Obamacare’s subsidies for insurance purchased through exchanges established by the federal government, and Obergefell v. Hodges, which made same-sex marriage the law of the land, the hearings were titled “With Prejudice: Supreme Court Activism and Possible Solutions.”
As the title suggests, committee conservatives, in the majority, remain focused on what they see as the Court’s activism. Their witnesses were two professional friends of mine, former Chapman Law Dean and now Professor John Eastman and Ethics and Public Policy Center President Ed Whelan. Nominally representing the liberal activist side was Duke Law Professor Neil Siegel.
Read more at http://www.cato.org/blog/senate-conservatives-seek-rein-court
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