Overruled: The Long War for Control of the U.S. Supreme Court.

• Author: Waas, George
• Position: Book review

Overruled: The Long War for Control of the U.S. Supreme Court

By Damon Root

The recent U.S. Supreme Court decisions upholding Obamacare and declaring gay marriage a constitutional right has triggered the latest debate over the proper role of the Court--and the judiciary--in American society. Conservatives rail at the notion of unelected judges overruling the will of the majority, blast an activist Supreme Court, and plea for judicial restraint. Liberals argue that the Court is simply asserting its historic role as a co-equal branch of the federal government, empowered by the Constitution to say what the Constitution means as applied to current economic and social conditions.

In his timely, important, and provocative work, Overruled: The Long War for Control of the U.S. Supreme Court, Damon Root, senior editor at Reason magazine and Reason.com, examines the Court's role in the "long war" over judicial activism versus judicial restraint.

Root's central theme is succinct and direct: Should the Supreme Court defer to the will of the majority and uphold most democratically enacted laws simply because it is the majority? Or does the Constitution empower the Supreme Court to place primary emphasis on protecting a broad range of individual rights from the reach of lawmakers?

In addressing these questions, the author focuses on the 14th Amendment in discussing seminal cases from significant periods in our nation's history--slavery and the Civil War, Reconstruction, economic regulation and the New Deal, the post-New Deal civil rights and voting rights era--to today's legal philosophical, ideological, and jurisprudential battles over the hot-button issues of health-care reform, gay rights, and the Second Amendment.

Root, in placing judicial activism and judicial restraint in its relative historical context, observes that this conflict cuts across the political spectrum in remarkable ways, making for some unusual bedfellows. History demonstrates that judicial restraint or deference, formerly a touchstone of the progressive left, is now a philosophy adopted by many members of the modern right.

Judicial restraint advocates believe that in examining a law, the courts should defer to the legislative branch, and must accept the government's stated rationale--or any hypothetical or presumed rationale--in upholding a law, unless it conflicts with an express prohibition in the Constitution. (Root points...