Tag Archives: Judicial review

Presumed Constitutionality

Attorney General Holder answered the Fifth Circuit’s odd letter of concern with a statement supporting the notion of judicial review — obviously — but noting that a presumption of constitutionality attaches to acts of Congress, except in rare cases. Conservative sites spin this as surprising, and a pitch to Justice Kennedy. It’s… not. Unless laws […]


In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of […]


Lochner’s Role in Framing the Individual Mandate

The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal: The full name […]


Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying: Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress. I’d just remind conservative commentators […]


The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law: And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and […]


Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach: Whereas Brennan, Ely, and Posner advance theories that inevitably […]

Republicans’ Jenga Game with the Modern Constitution Continues Apace

Thanks, Rachel, for the link! It’s time to put conclusively to bed the myth that conservatives favor a steady-state, precedent-bound legal world, as opposed to them-there “activist” liberals. As proof, take this column from George Will, putatively a movement leader, arguing for the resurrection of a monumentally old and long-since repudiated decision: Lochner v. New […]

Is the Supreme Court’s Mandate Binding?

I know, dumb question. But bear with me. Jennifer Rubin for the Washington Post highlights an odd question kicked to several of the current Republican contenders: do they think Congress could (and should) pass a law under the Fourteenth Amendment’s “enforcement clause,” overruling Roe v. Wade? Let’s state the painfully obvious — this is a […]

The Heritage Foundation Makes the Case for Judicial Activism…

…while purporting to invoke “judicial restraint.” In a summary of how, exactly, the Sixth Circuit apparently erred in sustaining the Affordable Care Act against slipshod “tenther” litigation, Edwin Meese explains, Whatever the merits of that judge’s analysis, it was not an example of judicial restraint properly understood. While restraint counsels against judges shaping the law […]

Standing, and Rights vs. Remedies


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