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Jonathan Bernstein

Republican Judges Don’t Care for Restraint

Conservative judicial activists are showing scant respect for precedent or the prerogatives of other parts of the government. Expect the elected branches to fight back.

No holds barred.

No holds barred.

Photographer: Anna Moneymaker/Getty Images

If you had any doubt that Republican objections to judicial activism would melt away if conservative judges gained the upper hand, Supreme Court Justice Samuel Alito and some of the judges on the US Court of Appeals for the Fifth Circuit, in Texas, should put it to rest.

The two relevant data points are the leaked draft of an opinion by Alito that would overturn the 1973 abortion-rights precedent Roe v. Wade and a Fifth Circuit decision this week challenging the authority of the Securities and Exchange Commission (for an excellent discussion of that one, see my Bloomberg Opinion colleague Matt Levine). We don’t know yet what the final result of the abortion case will be, and the SEC case is for now just the work of two mid-level judges. But Alito reportedly has the majority of the court, and it’s likely that the Fifth Circuit decision will prevail, too, in some form or another.