Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago

Florida Law Review Volume 63 | Issue 3 Article 1 2-15-2013 Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago Nelson Lund Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Constitutional Law Commons, Courts Commons, Jurisprudence Commons, Legal Profession Commons, and the Legislation Commons Recommended Citation Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago, 63 Fla. L. Rev. 487 (2011). Available at: http://scholarship.law.ufl.edu/flr/vol63/iss3/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact . Lund: Two Faces of Judicial Restraint (Or Are There More?) in McDonald Florida Law Review Founded 1948 Formerly University of Florida Law Review VOLUME 63 MAY 2011 NUMBER 3 TWO FACES OF JUDICIAL RESTRAINT (OR ARE THERE MORE?) IN MCDONALD V. CITY OF CHICAGO Nelson Lund* I. INTRODUCTION ..........................................................................487 II. PRECEDENT PLUS ORIGINALISM: JUSTICE ALITO‘S PLURALITY OPINION ................................................................. 492 A. Precedent .......................................................................... 492 B. Originalism ....................................................................... 495 C. Activist Dicta .................................................................... 501 III. RESTRAINED ORIGINALISM: JUSTICE THOMAS‘S CONCURRENCE .........................................................................506 IV. JUDICIAL RESTRAINT AS COMMON LAWYERING: JUSTICE STEVENS‘S DISSENT.....................................................514 V. INACTIVE (JUDICIAL) LIBERTY: JUSTICE BREYER‘S DISSENT ....................................................................................520 VI. CONCLUSION .............................................................................523 I. INTRODUCTION Since the days of the Warren Court, conservatives have attacked ―judicial activism.‖1 Beginning with Judge Robert Bork‘s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables.2 Critics now charge that conservative judges are * Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law. For helpful comments, I am grateful to Eric Claeys, Stephen G. Gilles, Kenneth Klukowski, Mara S. Lund, and John O. McGinnis. George Mason‘s Law and Economics Center provided valuable research support. 1. E.g., MARK R. LEVIN, MEN IN BLACK: HOW THE SUPREME COURT IS DESTROYING AMERICA 11–12 (2005). 2. See, e.g., id. at 176; Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 HARV. L. REV. 2387, 2387 (2006) (book review) (―The odd thing is that—unlike any earlier time in American history—both sides of the political spectrum proclaim 487 Published by UF Law Scholarship Repository, 2011 1 Florida Law Review, Vol. 63, Iss. 3 [2011], Art. 1 488 FLORIDA LAW REVIEW [VOL. 63 activists, especially when they undermine liberal precedents or strike down liberal legislation.3 Defenders of judicial activism have all but disappeared.4 One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint. Any of the following quotes, for example, could easily have been uttered by any of the four most recent nominees: I‘m not quite sure how I would characterize my politics. But one thing I do know is that my politics would be, must be, have to be completely separate from my judging. And I—I agree with you to the extent that you‘re saying, look, judging is about considering a case that comes before you, the parties that comes [sic] before you, listening to the arguments they make, reading the briefs they file, and then considering how the law applies to their case—how the law applies to their case—not how your own personal views, not how your own political views might suggest, you know, anything about the case, but what the law says, whether it‘s the Constitution or whether it‘s a statute. Now, sometimes that‘s a hard question, what the law says, and sometimes judges can disagree about that question. But the question is always what the law says. Sometimes it‘s hard to give meaning to a constitutional term in a particular case. But you don‘t look to your own values and beliefs. You look outside yourself to other sources. This is the basis for, you know, that judges wear black robes, because it doesn‘t matter who they are as individuals. That‘s not going to shape their decision. It‘s their understanding of the law that will shape their decision. Judges have to be careful not to inject their own views into the interpretation of the Constitution, and for that matter, into the interpretation of statutes. That is not the job that we are given. That is not authority that we are given. themselves unhappy with the courts. Charges of judicial ‗activism,‘ once a staple of conservative critiques of the courts, now are heard as often from liberals and progressives.‖). 3. E.g., CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA 8–13 (2005). 4. See, e.g., Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activism?, 73 U. COLO. L. REV. 1401, 1401 (2002) (―Everyone scorns judicial ‗activism,‘ that notoriously slippery term.‖). http://scholarship.law.ufl.edu/flr/vol63/iss3/1 2 Lund: Two Faces of Judicial Restraint (Or Are There More?) in McDonald 2011] TWO FACES OF JUDICIAL RESTRAINT 489 [T]he role of judges is to interpret both the Constitution and law. Their role is to do both in accordance with their terms. And, so, that is the function of a judge. Clearly, a judge looks at the terms and tries to, if it‘s not— if it‘s the Constitution, what are the principles that underlie that provision of the Constitution, and it‘s informed by precedent. If it‘s a statute, you use principles of statutory construction, starting always with the words, and you give effect to Congress‘s intent. That‘s the role of a judge. I do not believe that judges should use their personal feelings, beliefs, or value systems or make their—to influence their outcomes.5 Some politicians and commentators have suggested that nominees are dissembling when they make such statements, and some of the sitting Justices have been accused of repudiating positions they took when seeking Senate confirmation.6 Usually, these charges are made by conservatives against liberals or by liberals against conservatives.7 5. The four statements were made at their confirmation hearings by Elena Kagan, John Roberts, Samuel Alito, and Sonia Sotomayor, respectively. See Confirmation Hearing on the Nomina (...truncated)