Using text and original meaning to overturn decisions of the political branches is nothing novel for legal conservatives — and hardly part of a new sinister turn in legal conservatism, as Rosen implies. Consider some of the famous cases of the 1980s and 1990s: Chadha and Bowsher, invalidating congressional statutes on separation-of-powers grounds; Lucas, Nollan and Dolan, invalidating state land-use regulations as violations of the takings clause; Lopez and Morrison, invalidating federal statutes as exceeding the commerce power; Adarand and Croson, invalidating state and federal affirmative action programs. All these cases, and many more, overturned decisions of the political branches; all were controversial, yet they enjoyed the support of the Court’s leading conservatives and were widely applauded by conservative scholars and commentators. One can quarrel with the textualist/originalist grounds of particular decisions, but one can hardly say that invalidating laws as inconsistent with text and original meaning runs counter to longstanding conservative judicial philosophy.
The short of it is that, in general, legal conservatives don’t subscribe to the Rosen/Graglia/Wilkinson version of judicial restraint. So of course Professor Rosen is right that his version of judicial restraint would counsel upholding the health care law, but he can’t claim that legal conservatives would betray their philosophy by striking it down. To the contrary, mainstream conservative legal traditions for the past 30 years call on judges to invalidate laws inconsistent with constitutional text and original meaning. In calling for “restraint,” this line of thought means that judges should be “restrained” by the Constitution (not that they should be restrained by very strong deference to the political branches). Rosen only sees a contradiction because he’s using a different (albeit, to my mind, preferable) definition of “judicial restraint.”
Indeed, Judge Wilkinson and Lino are outside the mainstream of judicial conservatives–and certainly judicial libertarians!