What Kind Of Judicial Restraint Are We Talking About?

 After the most recent Supreme Court session, in which President Biden didn’t like some of its rulings, as with denying him the unilateral power to forgive student loans as a violation of the constitutional separation of powers, he said, “this is not a normal court,” not just conservative, but rather “like a throwback, some of the decisions that they’re making,” which has “done more to unravel basic rights and basic decisions than any court in recent history.

Biden’s character assassination of the current Supreme Court echoed Justice Kagan’s student loan case dissent: “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance,” but instead, “From the first page to the last, today’s opinion departs from the demands of judicial restraint.

Such accusations of the Supreme Court’s failing to exercise appropriate judicial restraint bypass a crucial question: What kind of judicial restraint are we talking about? Restraint means “to keep someone or something under control,” but it does not identify who the relevant someone is.

The key to this kerfuffle is whether the appropriate restraint involved is that the Supreme Court is to restrain itself from “interference” with what other branches want to do or whether government’s overstepping of its constitutional authority is to be restrained, and it is the Supreme Court’s job to do the restraining.

Federalist 78 asserts that courts are not to invalidate laws consistent with the Constitution, and that is the restraint the courts are to exercise for themselves.

The Supreme Court’s recent rulings that are subject to the most intense current attacks did not ignore precedents, as those insisting they are violations of judicial restraint or commissions of inappropriate judicial “activism” allege.

If such court “activism” is to be rejected in favor of judicial “restraint” that enables violations of the Constitution, much of it is already a dead letter, and it has become what James Madison called a mere “parchment barrier” that fails to protect our rights in fact. 

https://www.aier.org/article/what-kind-of-judicial-restraint-are-we-talking-about/