The current conservative judicial mind and the idea of restraint

I must be brief. I am off to Omaha early this morning for a fun-filled day of criminal law. I will hold eight sentencing hearings. All of the defendants are likely to receive prison time.

As a federal trial judge, I read tea leaves and follow precedent. Almost never am I called on to apply my own theory of Constitutional adjudication. That said, it is helpful to understand what the “big boys and girls” are thinking. That is particularly true of the “big boys and girls” who are conservatives. After all, they tend to dominate the current makeup of the Supreme Court and the Courts of Appeal. In particular, the idea of “judicial restraint” that allegedly animates so many “conservative” decisions is a notion that is, at least for me, desperately in need of clarification.

With that in mind, I heartily recommend Joel Alicea’s* short essay entitled Real Judicial Restraint in the Fall 2013 issue of National Affairs. It is a readable and cogent explanation of the separate concepts of “judicial restraint” that have moved, are now moving or should move judicial conservatives. Alicea has his favorite, but it is the taxonomy that I find most helpful. The essay is well worth reading if you desire to gather intelligence on the current conservative judicial mind and the notion of restraint.


*The author is a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. His piece receives praise from Ed Whelan the prominent conservative legal commentator.

PS As is so often the case, I give thanks to Howard Bashman and How Appealing for the tip.

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