Yes, Judicial Engagement IS Winning Over Conservatives: A Response to Professor Ramsey

Are conservatives truly revisiting their longstanding commitment to judicial restraint, or are liberals merely flogging a narrative of right-wing radicalism to advance their own ends? Last week, I responded to an article by The New York Times' Linda Greenhouse focusing on conservative criticism of Chief Justice John Roberts in the wake of his votes to preserve the Affordable Care Act. Greenhouse claimed that an important recent shift is taking place within the conservative legal movement--a shift from judicial restraint, which holds that judges should generally defer to the choices of the political branches, to judicial engagement, which holds that judges have a duty to impartially pursue the truth concerning the lawfulness of the government's conduct and enforce the Constitution without unwarranted deference.

In a recent post on the Originalism blog, Professor Michael Ramsey argues that the shift Greenhouse identifies is not particularly significant and not related to the ACA cases. He concludes that Greenhouse is "trying to create a scare narrative of a radical shift in conservative objectives that has left the cautious Chief Justice behind." But I think Ramsey is wrong to diminish the shift and fails to grasp the intimate connection between conservative criticism of Roberts and the rise of judicial engagement.

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