Judicial Restraint

Sit up and take notice, Your Honor.

Justice Ginsburg overstated her case. If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Adam Liptak, the Supreme Court correspondent of the New York Times, summarizing recent research into judicial behavior.

Remember the homework assignment issued by Judge Jerry Smith of the Fifth Circuit to the U.S. Department of Justice? Earlier this week, Judge Smith ordered the DOJ to file a three-page, single-spaced letter discussing the principles of judicial review, in light of prior comments by President Barack Obama that could be construed as questioning the doctrine.

The response was due today at noon (Houston time) — about 20 minutes ago. It was filed on behalf of the Department by Attorney General Eric Holder.

Let’s take a look, shall we?

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'I'm so glad the Justice Department respects judicial review!'

The nation recently received a lesson in constitutional law from President Barack Obama (who famously taught Con Law at the University of Chicago). As we mentioned yesterday, President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The problem with this lesson: it wasn’t exactly accurate. Those “unelected” federal judges “overturn … duly constituted and passed law[s]” all the time — well, maybe not all the time, but on occasion, when said laws are inconsistent with the U.S. Constitution. It’s neither “unprecedented” nor “extraordinary,” and it doesn’t amount to judicial activism; rather, it’s called judicial review.

One prominent conservative jurist, Judge Jerry E. Smith of the Fifth Circuit, took it upon himself to set the record straight on this matter….

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Justice Elena Kagan

It seems like we’re all working hard. It’s not like we’re playing golf on Wednesday afternoons.

– Justice Elena Kagan, in remarks delivered at Harvard Law School this past Friday to the National Association of Women Judges.

(A second Quote of the Day, from a circuit judge who feeds clerks to Justice Kagan, after the jump.)

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