Magliocca on Wilkinson’s Cosmic Theory of Judicial Restraint

February 15th, 2012

I’ve criticized Judge Wilkinson’s jurisprudence for some time. Gerard has a nice segment:

Wilkinson introduces and concludes his analysis by advocating judicial restraint as superior to any comprehensive system of constitutional interpretation. This raises a question–why isn’t judicial restraint also a cosmic theory? After all, that approach has its own pros and cons if it is treated as something more than a presumption. Judge Wilkinson is aware of this weakness, but his response is not persuasive. I was particularly struck by this passage, which responds to the point that some activist decisions of the past have stood the test of time:

“Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

Unfortunately, this sounds a lot like the infamous quote from the United States Patent Commissioner in the late nineteenth century that everything that could possibly be invented had already been invented. A presumption in favor of judicial restraint is fine, but when that becomes dogma implausible conclusions must be drawn to keep the faith. Judicial restraint is no exception.

I may write a review of this book. We’ll see.

Update: I don’t know what J. Harvie would have done if he sat on the 4th Circuit in Segregationist Virginia. I wonder how he would answer that question.