Apropos of my post below, have a look at this column by Ross Douthat this morning about judicial restraint. I have some doubts about the work that judicial restraint is sometimes asked to do, and the contexts in which it is invoked. But Douthat, it seems to me, is onto something important when he says: “It should be a point of bipartisan consensus that the judiciary is a political body rather than a panel of Platonic Guardians, and it’s a healthy thing for our democracy to have the other branches of government ready to push back when the high court seems to overreach.”
The “push back” might take the form of the sorts of structural reforms Douthat discusses. But it need not do so. In fact, it may be better if it did not do so. It might instead take the form of substantive push back, based on the obligations of nonjudicial actors to think the merits of constitutional issues through on their own and to live up to their Article VI oaths.