Unleash the high court

Because judicial decisions have propelled American history and because a long-standing judicial mistake needs to be rectified, the most compelling of the many reasons for electing Mitt Romney is that presidential elections shape two of the federal government’s three branches. Conservatives, however, cannot coherently make the case for Romney as a shaper of the judicial branch until they wean themselves, and perhaps him, from excessive respect for judicial “restraint” and condemnation of “activism.” …

One hopes that Romney knows that on today’s court the leading advocate of judicial “restraint” is the liberal Breyer, who calls it “judicial modesty.” Contemporary liberalism regards government power equably, so the waxing of the state seems generally benign. Yet Romney promises to appoint “restrained” judges. If, however, the protection of liberty is the court’s principal purpose, it must not understand restraint as a dominant inclination to (in the language of Romney’s Web site) “leave the governance of the nation to elected representatives.”

Such as those elected representatives who imposed Obamacare’s individual mandate? Or those representatives who limited (with the McCain-Feingold law) the freedom of political speech of persons acting as individuals? Or those who limited (with the law that Citizens United overturned) the speech rights of people associated in corporations? Or those who seized private property under eminent domain not for a clear “public use” but for any “public benefit” that enriches government? (This abuse was ratified by a “restrained” court majority in Kelo v. New London.)