FROM BORK TO WILLETT: Is the conservative legal movement going libertarian?

Author:Root, Damon
Position:LAW - Robert Bork, Don Willett - Column

WHEN PRESIDENT RONALD Reagan nominated Robert Bork to the U.S. Supreme Court in 1987, he said his nominee was "widely regarded as the most prominent and intellectually powerful advocate of judicial restraint."

It was no exaggeration. Bork routinely preached the virtues of a judiciary that's deferential to lawmakers, arguing that in the vast majority of cases, "the only course for a principled Court is to let the majority have its way."

Where Bork led, most conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right.

That philosophy still holds sway in some quarters today. But it's increasingly under fire from legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities.

Case in point: In September, President Donald Trump nominated Texas Supreme Court Justice Don Willett to serve on the U.S. Court of Appeals for the 5th Circuit.

Willett, who also appeared on Trump's shortlist of potential Supreme Court candidates, is a rock star in legal circles and a popular social media presence. If successfully confirmed to the 5th Circuit, he would immediately rank as one of the most libertarian-minded federal judges in the country.

Willett's rising influence signals Bork's declining favor and shows that libertarian legal ideas are gaining ground.

On the surface, the two jurists exhibit some similarities. They're both "conservative" and have ties to the Republican Party. But they differ in more fundamental ways. Bork wanted judicial minimalism; Willett wants judicial engagement.

"The State would have us wield a rubber stamp rather than a gavel," Willett complained in the 2015 case Patel v. Texas Department of Licensing and Regulation, "but a written...

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